IT IS NOT UNKNOWN that inventories are time-consuming, costly and complex measures aimed at resolving and sharing assets of those who have passed away. Until then, always done through LEGAL ACTION where, observing the rules regarding the order of hereditary vocation (currently in art. 1.829 of CC/2022 – formerly, art. 1.623 of CC/1916) the assets left by the “de cujus” are divided between heirs and the causa mortis tax (ITD or ITCMD) collected from the State. Since 2007 on the occasion of the Lei 11.441 a new scenario unfolded with the possibility of a faster resolution of Inventories and Shares directly at the Notary, with the obligatory presence of a LAWYER but without any need for a LEGAL PROCEEDING.
The very welcome novelty originally had some restrictions: it was not possible to make an inventory at the Registry when there was DISSENSE between the interested parties, TESTAMENT or DISABLED heirs. It was up to CNJ Resolution 35/2007 to present the regulations so that in practice the novelty was carried out by the Registry Offices and – since then – more than 15 (fifteen) years have passed and today we can categorically state that time has done a lot of good to the EXTRAJUDICIAL INVENTORY: today it is perfectly possible to carry out Extrajudicial Inventories in the Registry Office even if the deceased left a WILL or even if there are DISABLED HEIRS (*it is very important to analyze this classification of “incapacity” in light of the new scenario established by Law 13.146/2015).
Here in Rio de Janeiro, for example, the rules for carrying out the Extrajudicial Inventory with a will and also with incapable interested parties are, respectively, in articles 446 and 447 of the Code of Extrajudicial Norms, in force from January 2023. It is important to make it clear that the JUDICIAL route is not vetoed even in cases where all the requirements for carrying out the administrative procedure are present. As a matter of fact, there were those who argued that the judicial route could only be used if the extrajudicial route remained obstructed, so that the use of the notarial route would then be mandatory – a position we never share.
The extrajudicial route can never be mandatory. The common trait here will always be optionality.
A recurring issue for us who deal daily with cases involving INVENTORIES, divisions, wills, inheritances and similar issues concerns those judicial inventories that for years, if not decades, have been paralyzed in court causing real DAMAGE to all involved. Can they be brought to the solution in the extrajudicial way, even after so much time?
First of all, it is necessary to remember that currently the Judicial Inventory can be resolved through three ways, as disciplined by CPC/2015 (and we have already discussed it here in detail): traditional and solemn rite (arts. 610 a 658), summary listing (arts. 659 a 663) e common listing (art. 664).
Not always bringing the inventory that has already been processed for some years in the judicial process can be advantageous as one can imagine, since, for example, the rule in the judicial process will be the collection of costs BEFORE the solution rendered by sentence – unlike the extrajudicial process where the “solution” occurs with the drawing up of the Deed, at which point the fees are paid/collected. Analyzing from this point of view, it is possible to verify that, if then, in the judicial process, the costs have already been paid to start the judicial inventory process, new costs will have to be paid to the Extrajudicial Registry if a Deed is the solution and not another Judgment, for force of the conversion carried out (article 2 of Resolution 35/2007 of the CNJ).
In this sense, it is very important that the Specialist Lawyer is consulted and analyzes the entire panorama of the situation, including a study of the real situation. FEASIBILITY of the conversion from judicial to extrajudicial procedure since, as we know, the extrajudicial route – which even with all the advances may prove to be LIMITED in the face of certain concrete situations – may not always be advantageous in all cases. Considering the question of the “double” payment of costs/fees is a crucial point that must be weighed with another resource that is so important today: the TIME that the parties may no longer have to enjoy free goods, cleared and regularized in your names.
Read also: Fifteen Recurring Questions Regarding Extrajudicial Inventory
FINALLY, the lucid jurisprudence of the TJMG that serves as a warning for this necessary examination of the feasibility of the conversion:
“TJMG. 10324150029878001. J. on: 06/23/0020. INTERLOCUTORY APPEAL – CIVIL PROCEDURAL LAW – INVENTORY ACTION. (…). SUBJECT TO PAYMENT OF COSTS – REQUEST FOR WAIVER TO PROMOTE SHARING IN THE EXTRAJUDICIAL WAY – IRRELEVANCE – NON-EXISTENCE OF LEGAL EXEMPTION – TAX NATURE OF THE DEBT – DEED THAT HAS BEEN PROCESSED FOR FIVE YEARS – COLLECTION DUE (…) 3. Resolution no. 35/2007 of the CNJ, by allowing the option for extrajudicial means, at any time, does not exempt the heirs from paying court costs and court fees. 4. The waiver of the judicial inventory to migrate to the extrajudicial route does not grant the estate exemption from the payment of procedural costs, which are due by the simple movement of the judicial machine. This fact, moreover, was carried out for five (5) years and included the practice of acts by the distributor, the secretariat, the court and also by the accountant, already duly accounted for in the calculation of procedural costs. 5. The jurisprudence of c. STF has already established guidance that procedural costs are of a tax nature, qualifying as public service remuneration fees. Absent legal provision as to its exemption in the case under discussion, the Judiciary cannot simply grant it at will, inadvertently harming the already weakened state public coffers. 6. Appeal Not Provided”.
Original by Julio Martins