Procedural Aspects of International Probate and Estate Administration in Brazil and Common Law Jurisdictions

International probate and estate administration currently constitute one of the most complex and sophisticated areas of contemporary succession law, particularly in light of the increasing internationalization of family wealth, the expansion of transnational asset-holding structures, the establishment of foreign holding companies and offshore entities, and the growing use of legal mechanisms typical of common law jurisdictions, such as joint tenancy arrangements.

In this context, the role of the Brazilian attorney extends far beyond the procedural administration of probate proceedings. It now requires a comprehensive understanding of private international law, succession law, international judicial cooperation, transnational corporate law, international estate planning, and what may be described as a comparative registration and property law practice.

The principal legal framework governing international succession in Brazil is found in Article 10 of the Introductory Law to the Norms of Brazilian Law (LINDB) and Article 23, II, of the Brazilian Code of Civil Procedure. Article 10 of the LINDB provides that succession upon death shall be governed by the law of the country in which the deceased was domiciled, thereby adopting domicile as the primary connecting factor in succession matters. In turn, Article 23, II, of the Code of Civil Procedure establishes the exclusive jurisdiction of Brazilian courts over probate proceedings and the distribution of assets located within Brazilian territory, regardless of whether the deceased was a foreign national or domiciled abroad.

Such jurisdiction is an expression of judicial sovereignty and prevents foreign judgments from automatically producing legal effects with respect to assets located in Brazil, except through the recognition and international cooperation mechanisms provided by Brazilian law. This territorial limitation of Brazilian succession jurisdiction has become increasingly significant as modern family wealth becomes progressively dispersed across multiple jurisdictions.

In recent years, the Superior Court of Justice (STJ) has developed highly significant case law concerning the limits of Brazilian jurisdiction in international probate matters, particularly in cases involving foreign assets, offshore structures, and common law institutions such as joint tenancy. The issue gained particular prominence following the judgment rendered in Special Appeal (REsp) No. 2.080.842/SP, authored by Justice Marco Aurélio Bellizze and decided by the Third Panel of the Court on August 27, 2024, a decision widely regarded as a landmark precedent in Brazilian cross-border succession law.

In that case, the Court addressed a highly complex succession dispute involving a deceased individual domiciled in Brazil who held assets through offshore companies incorporated in the British Virgin Islands and structured under a joint tenancy arrangement. The central issue was whether such assets could be taken into account by Brazilian courts for purposes of adjusting or compensating the forced heirship rights of compulsory heirs under Brazilian law.

The Court expressly held:

"Brazilian law does not apply to the succession of assets located abroad, including for purposes of any potential adjustment or compensation of compulsory heirship shares."

The legal rationale underlying the decision derives from the combined interpretation of Article 23, II, of the Code of Civil Procedure and Article 10 of the LINDB. The Superior Court of Justice reaffirmed that Brazil follows the principle of plurality of succession proceedings, according to which each sovereign State exercises jurisdiction solely over assets situated within its own territory, with the lex rei sitae serving as the principal connecting factor governing international property succession.

Justice Marco Aurélio Bellizze's opinion is particularly noteworthy because it definitively rejected prior doctrinal and judicial attempts to use foreign assets, even merely as an economic benchmark, for the indirect adjustment of compulsory heirs' reserved shares in Brazil. The Court concluded that even such indirect compensation would be inadmissible, as it would constitute an indirect submission of foreign assets to Brazilian jurisdiction.

The ruling therefore established an important practical limitation on the extraterritorial effectiveness of Brazil's forced heirship regime as set forth in Articles 1,845 and 1,846 of the Brazilian Civil Code. Although forced heirship remains a fundamental institution of family protection under Brazilian law, the Court recognized that its application encounters concrete limitations arising from foreign sovereign jurisdiction and the territorial nature of international property law.

From the perspective of international estate planning, the precedent strengthens succession structures validly established abroad. Foreign holding companies, trusts, joint tenancy accounts, survivorship deeds, and other common law mechanisms now enjoy significant indirect judicial protection under Brazilian law, provided they have been validly constituted in accordance with the applicable foreign legal system.

Within this framework, joint tenancy assumes particular importance. Commonly used in the United States, Canada, and the United Kingdom, joint tenancy is a special form of co-ownership based on the right of survivorship, whereby the death of one co-owner results in the automatic and immediate transfer of the entire ownership interest to the surviving co-owner, without the need for probate proceedings, traditional succession procedures, or formal estate administration.

In practice, assets held in joint tenancy frequently never become part of the deceased's probate estate. Ownership passes automatically by operation of law to the surviving joint tenant. This was precisely the situation examined in REsp No. 2.080.842/SP. The foreign corporate interests held under a joint tenancy structure were automatically transferred to the surviving spouse, thereby removing a substantial portion of the wealth from the inheritance claims asserted by the compulsory heirs.

Nevertheless, the Superior Court of Justice held that Brazilian courts lack jurisdiction to invalidate, review, or offset the proprietary effects arising from the foreign law governing assets located abroad. According to the Court, any attempt to indirectly compensate compulsory heirs through Brazilian proceedings would constitute an infringement upon the sovereignty of the foreign State possessing jurisdiction over the relevant assets.

This interpretation reveals a profound tension between two distinct succession models. On one hand lies the Brazilian system of mandatory protection of compulsory heirs through forced heirship rules. On the other lies the common law tradition, which generally favors broader testamentary freedom and automatic non-probate transfers of wealth.

The position adopted by the Superior Court of Justice closely aligns with contemporary private international law scholarship. Jacob Dolinger has consistently argued that modern private international law requires strict respect for the connecting factors established by each sovereign legal system, particularly in matters involving international succession and cross-border property rights. According to Dolinger, the international effectiveness of domestic succession rules encounters concrete limits arising from the territorial location of assets and the autonomy of foreign legal systems.

International judicial cooperation does not authorize the indirect imposition of Brazilian succession rules upon assets subject to the sovereign jurisdiction of foreign States, particularly where ownership structures derive from legal institutions unknown to the civil law tradition, such as trusts, survivorship rights, and joint tenancy arrangements.

Within the Brazilian legal system, forced heirship constitutes a rule of strong family protection and a genuine matter of domestic public policy. Nonetheless, its international effectiveness is necessarily constrained by foreign sovereignty and the territorial limits of jurisdiction.

Importantly, however, the STJ's position does not establish absolute immunity for offshore structures or joint tenancy arrangements. The Court's reasoning allows for the conclusion that fraudulent, simulated, or artificially constructed arrangements designed to defeat compulsory heirship rights may still be subject to judicial scrutiny in Brazil whenever a sufficient jurisdictional nexus exists.

The practical significance of this aspect is considerable. If, for example, a decedent transfers Brazilian assets to a foreign offshore entity shortly before death with the evident intention of frustrating compulsory heirs' rights, disputes may arise involving fraud against heirs, sham transactions, abuse of rights, hotchpot and advancement issues, reduction of excessive lifetime gifts, fraudulent succession planning, reverse piercing of the corporate veil, international asset concealment, and abusive estate planning practices.

Nevertheless, the practical effectiveness of such remedies will depend upon the existence of assets, individuals, corporate entities, or legal effects that remain subject to Brazilian jurisdiction.

Another highly significant aspect reaffirmed by the Superior Court of Justice concerns the principle of plurality of succession proceedings. In Interlocutory Appeal in Special Appeal (AgInt no REsp 2.072.068/SP), also authored by Justice Marco Aurélio Bellizze, the Court expressly stated that:

"Brazil adopts the principle of plurality of succession proceedings."

In the same decision, the Court further emphasized that:

"Brazilian law does not extend to assets located abroad that are subject to probate and distribution."

This understanding confirms the possibility of simultaneous succession proceedings in multiple jurisdictions. Consequently, judicial or extrajudicial probate proceedings in Brazil may coexist with foreign probate proceedings, trust administrations, ancillary probate proceedings, fiduciary administrations, and other asset-specific succession procedures conducted in different jurisdictions.

From a practical perspective, these precedents generate profound strategic consequences. Attorneys involved in international estate administration must undertake a multidimensional analysis encompassing the decedent's domicile, the legal and economic location of assets, the corporate nature of holdings, applicable foreign succession laws, survivorship provisions, trust arrangements, international matrimonial property regimes, applicable international conventions, cross-border inheritance taxation, international judicial cooperation mechanisms, potential recognition of foreign judgments, risks of double inheritance taxation, offshore asset tracing, and, most importantly, the interaction between international estate planning and the protection afforded to compulsory heirs.

It is equally essential to distinguish assets that genuinely form part of the decedent's legal estate from those that, under applicable foreign law, automatically pass to a surviving co-owner by virtue of common law mechanisms such as joint tenancy and the right of survivorship. In many situations, such assets never enter the probate estate at all, being transferred automatically and extrajudicially by operation of law. This distinction significantly affects the entire structure of international estate administration and directly influences the succession, corporate, asset-protection, and litigation strategies adopted by the parties involved.

From an estate planning perspective, the contemporary jurisprudence of the Superior Court of Justice provides greater predictability for transnational succession structures, strengthening the legitimate use of foreign legal mechanisms validly established abroad. Such an approach favors global succession planning, enhances international asset protection, reduces succession-related litigation, accelerates asset transfers, mitigates family disputes, and contributes to the stability of international holding and corporate structures.

Conversely, from the perspective of compulsory heirs, the current jurisprudential orientation may significantly limit the practical effectiveness of Brazil's forced heirship regime. Potential consequences include the partial depletion of the estate subject to Brazilian jurisdiction, the impossibility of compensating compulsory shares through foreign assets, procedural fragmentation of succession proceedings, increased litigation costs resulting from parallel proceedings in multiple jurisdictions, and difficulties associated with tracing offshore wealth structures.

It is therefore important to emphasize that the international jurisdiction established by Article 23 of the Brazilian Code of Civil Procedure should not be interpreted mechanically or through a rigid bilateral approach. At first glance, one might argue that because Brazilian courts possess exclusive jurisdiction over certain matters involving assets located in Brazil, disputes concerning assets located abroad must necessarily fall within the exclusive jurisdiction of foreign courts. Such reasoning, however, is overly simplistic and inconsistent with the contemporary logic of private international law.

Article 23 merely defines those circumstances in which Brazilian jurisdiction is exclusive. It does not possess normative authority to determine when foreign jurisdiction must likewise be exclusive. Put differently, Brazilian legislation cannot dictate how foreign States organize their own systems of international jurisdiction.

For this reason, the jurisprudence of Brazil's Supreme Federal Court has recognized that the rule conferring exclusive jurisdiction upon Brazilian courts with respect to real property located in Brazil does not automatically imply that only foreign courts may adjudicate disputes involving property located abroad. Each State remains free to establish its own jurisdictional criteria and may, in certain circumstances, permit disputes concerning property within its territory to be decided by foreign courts, particularly where the dispute is contractual, personal, or patrimonial rather than strictly in rem.

Accordingly, Brazilian courts may exercise jurisdiction over disputes involving assets located abroad whenever a legitimate connecting factor with Brazil exists, such as the domicile of the parties, the occurrence of relevant facts within Brazilian territory, or the execution of the underlying legal transaction in Brazil. Equally important is the possibility that the resulting judgment may be recognized and enforced in the foreign jurisdiction where the asset is located.

Within this context, the distinction between in rem and in personam actions assumes central importance. In many legal systems, both civil law and common law, exclusive territorial jurisdiction is generally confined to real property actions and does not extend to contractual, annulment, or indirect patrimonial claims associated with real estate.

If, for example, an action seeking the annulment of a gift involving real property located abroad were filed in Brazil between parties domiciled in Brazil, there would be no automatic impediment to Brazilian jurisdiction. The dispute would concern the validity of the legal transaction itself rather than the direct adjudication of foreign real property rights. In such circumstances, both essential requirements for the legitimate exercise of Brazilian jurisdiction would be satisfied: a meaningful connection with Brazil and the possibility of recognition abroad.

Consequently, the contemporary interpretation of Article 23 of the Code of Civil Procedure rejects excessively territorial approaches and recognizes that international jurisdiction must be analyzed in a functional, coordinated, and cooperation-oriented manner, thereby avoiding both negative conflicts of jurisdiction and artificial restrictions on access to justice in transnational property disputes.

International succession law increasingly requires the abandonment of traditional unitary conceptions of inheritance, particularly in light of the growing use of global wealth structures that are incompatible with the classical framework of Brazilian succession law.

REsp No. 2.080.842/SP also reaffirmed that Article 10 of the LINDB does not establish the absolute supremacy of the law of the decedent's domicile. The Superior Court of Justice expressly recognized the need to reconcile multiple connecting factors in accordance with the realities of contemporary transnational wealth structures.

Contemporary STJ jurisprudence therefore reveals a clear trend toward deference to foreign proprietary sovereignty and increasing recognition of succession structures typical of common law jurisdictions, including joint tenancy arrangements, even where their practical effects may significantly limit the operation of Brazil's forced heirship rules.

International probate and estate administration have thus ceased to represent a mere extension of domestic probate proceedings. They have evolved into genuinely complex transnational legal operations requiring highly specialized legal expertise, simultaneous coordination among multiple jurisdictions, deep familiarity with foreign wealth-planning institutions, and careful strategic assessment of the international succession implications affecting the rights of all interested parties.

André Bezerra Meireles
International and Business Attorney and Consultant. Practice areas include Immigration, Nationality Law, Family Law, and International Estate Planning. Professor of Law and International Relations. LL.M. in International Law (Federal University of Santa Catarina – UFSC). Former Participant, Hague Academy of International Law. Lecturer and Speaker.