This article examines the legal aspects of selling properties that are still under probate, especially when the heirs only have a partial interest in the assets, which are in the name of a legal entity. The analysis focuses on Brazilian legislation, including the Civil Code, the Code of Civil Procedure, the Federal Constitution, and relevant jurisprudence from the Superior Court of Justice (STJ). The study addresses the seizure of the asset and its implications for the heir's future share in the division, in addition to discussing how the heir can proceed to sell the necessary assets.
The complexity of inventory procedures in Brazil increases when the assets involve real estate and the heirs only have a partial interest, especially when these assets are in the name of legal entities. This article seeks to clarify the procedures and legal restrictions for the sale of properties pending inventory, highlighting the situation in which the heir needs to sell inherited assets to obtain resources, and how he should proceed in the face of corporate participation and seizure of the asset.
Inheritance and Inventory Law
Inheritance law in Brazil is governed by the Civil Code (Law nº 10,406/2002), which establishes the general principles for the sharing of assets. During the inventory process, the administration and disposal of hereditary assets are regulated by the Civil Procedure Code (CPC, Law nº 13,105/2015). According to article 1,784 of the Civil Code, the inheritance is immediately transmitted to the heirs with the opening of the succession, but the effective sharing depends on the inventory process.
Sale of Properties in Inventory
According to article 618 of the CPC, the disposal of assets from an estate can only be carried out with judicial authorization. This measure aims to protect the interests of all heirs and creditors involved. The sale may be necessary to pay the deceased's debts or for the convenience of the heirs, but it always requires a specific judicial procedure.
Pledge on Good
Seizure on property is a precautionary measure provided for in article 831 of the CPC, used to secure outstanding credits in legal proceedings. When there is a seizure order on the property, it directly affects the rights of the heirs over the inventoried assets, and may obstruct the sale of properties until the judicial pending issue is resolved.
STJ's position
The Superior Court of Justice has consolidated its understanding of the need for judicial authorization for the sale of assets from an estate and the possibility of seizing the asset in inventory. In several rulings, the STJ reaffirms the protection of the rights of heirs and creditors, highlighting the importance of strict compliance with legal procedures.
Heirs in a Business Society
When heirs are partners in a company and only have a partial interest in the assets, the sale of those assets may involve additional complications. According to article 1,053 of the Civil Code, heirs' social shares are part of the inheritance and, therefore, subject to inventory. The participation of heirs in a business company requires special attention when calculating assets and dividing profits, which must be considered in the final sharing.
Procedures for the Sale of Properties
To sell a property pending probate, especially when the heir only owns fraction of the asset, the following steps are necessary:
Judicial Authorization : The inventor must ask the judge for authorization to sell the property. The petition must justify the need for the sale, whether to pay the estate's debts or to distribute the resources among the heirs.
Agreement between Heirs : Preferably, all heirs must agree to the sale. The lack of consensus can lead to legal disputes, further complicating the inventory process.
Property Appraisal : It is necessary to carry out an official appraisal of the property to determine its market value. This ensures that the sale will be fair and appropriate.
Auction or Direct Sale : The judge may order that the property be sold at auction or allow a direct sale, depending on the circumstances and the agreement between the heirs.
Distribution of Resources : After the sale, the resources must be distributed according to the share of each heir in the estate, respecting any liens on the asset.
Implications of Attachment to Assets
The seizure of the asset directly affects the availability of the inventoried assets. According to article 831 of the CPC, the seizure is registered on the property, preventing its sale until the attached debt is satisfied. This measure guarantees the creditor's priority over the debtor heir's share, which may make the sale of the property unfeasible until the dispute is resolved.
Conclusion
The sale of properties pending inventory is a complex process that requires strict compliance with current legislation and attention to court decisions, including the possibility of seizure of the property. Judicial action is essential to protect the interests of all parties involved, ensuring that the disposal of assets is carried out in a fair and legal manner. The jurisprudence of the STJ and the provisions of the Civil Code and the CPC provide a robust framework for managing these processes, but the practical challenges require a careful and well-informed approach.
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