High-end property in succession planning

Illustration. On an ordinary Tuesday, a 74-year-old developer dies without warning. He leaves a widow, three children and three projects, one still under construction, each held in its own special purpose company. The articles cover capital calls and profits in detail; on a partner's death, they say nothing. The family wealth is poured in concrete, and the probate inventory must be opened within sixty days.

None of this is unusual. What has changed is its price. Since 14 January 2026, when Supplementary Law No. 227/2026 was published, Brazil's inheritance and gift tax (ITCMD) has national general rules. The taxable base is now the market value of the asset transferred. For shares that are not listed, Article 154 sets a floor: net equity adjusted to market value, plus goodwill.

A will proves intent. Only cash proves the family will not have to sell at the worst possible moment.

The new law closed the book-value door

For years, part of the market built family holding companies to pass on shares at book value, far below the value of the property behind them. The tax fell on an old photograph.

Article 154 ends that arrangement. The valuation must follow a technically sound method, which may consider the cash the project generates, and it cannot fall below the floor. The appraisal report stops being a formality and becomes the document the state tax authority will challenge.

The same law closed two other exits. Rates are now applied by brackets, as in income tax. And successive gifts between the same donor and the same recipient are added together over the period set by state law, with the tax recalculated at each new gift. Slicing a gift into smaller pieces no longer changes the bracket. The ceiling remains 8%, as the Minas Gerais State Finance Department records under the 1992 Senate rule.

Legitimate planning keeps what matters: deciding when the transfer happens, who governs the stake afterwards and where the cash for the tax will come from.

The forced share draws the perimeter before any structure

No holding company, gift or will changes the baseline of the Civil Code. Article 1,846 reserves half of the estate for the necessary heirs, who are descendants, ascendants and the spouse. That half is the forced share, the legítima. The owner is free to dispose only of the other half.

A gift from parent to child is treated as an advance on the inheritance and must be brought back into the inventory, so that siblings end up equal. The technical term is collation. The donor can waive it by stating that the gift comes out of the disposable half, provided it fits within that half. Knowing which box each gift falls into separates a plan from a postponed dispute.

Succession planning does not reduce tax by magic. It chooses the moment of transfer, defines who governs afterwards and makes sure the family never has to sell what it built in order to pay the bill.

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A gift with retained usufruct moves the photograph, not the bill

Gifting bare ownership while keeping a life usufruct is the best-known planning tool, and the most misunderstood. The parent transfers ownership to the children and keeps, for life, the use of the property and the income it produces.

Article 151 of the supplementary law treats the taxable event as occurring on the date of the gift, even when it is an advance on the inheritance. Creating the usufruct is also a taxable event. The tax is therefore paid at the gift, not avoided. What changes is the date of the photograph: the base is market value on the day of the deed, and later appreciation already happens in the children's hands.

One point is often missed. National law exempts the end of a usufruct when full ownership consolidates with the person who created the right. In other situations, the final word belongs to each state. State law decides whether the usufructuary's death triggers a new charge, and it must be read before the deed is signed.

On the income tax side, a 1997 federal law allows assets to be transferred at the value in the tax return or at market value; in the second case, the difference is taxed as capital gain. Now that the state tax is tied to market value, that choice calls for numbers on the table.

The holding company charges tolls going in and along the way

Going in, a 1995 law lets owners contribute property at tax-return or market value. Any difference pays capital gains tax.

The delicate point is the municipal transfer tax (ITBI). Article 156 of the Federal Constitution exempts property contributed to a company's capital. But it carves out companies whose main activity is buying, selling or leasing real estate, which describes many property holding companies. The Federal Supreme Court, in Theme 796, added a limit: the immunity does not cover the value of assets that exceeds the share capital being paid in.

Courts are still debating how far the real estate carve-out reaches. The law of the municipality where the property sits has to be read case by case.

The road has also become more expensive. Since January 2026, the 2025 income tax reform withholds 10% on dividends above R$ 50,000 a month paid by one company to one individual. It also created a minimum tax for anyone receiving more than R$ 600,000 a year, starting with calendar year 2026. A holding company designed around the old numbers needs to be redrawn.

The articles of association decide whether an heir receives a stake or a lawsuit

Article 1,028 of the Civil Code says that when a partner dies, his quota is liquidated. There are three exceptions: the contract provides otherwise, the remaining partners choose to dissolve the company, or they reach an agreement with the heirs. In limited liability companies, this rule applies whenever the contract is silent.

At the family table, a silent contract hands the heirs a liquidation or a deadlock, not a stake. The surviving partners may have to pay out the quota in cash, in the middle of construction. The heirs receive a sum of money, not a seat.

A project designed to last for generations solves this when the company is formed. It sets how quotas pass to successors, who votes for minor heirs, which decisions need a qualified majority and how someone who wants out can leave. A clear condominium charter and predictable recurring income sustain the asset, whatever each heir decides.

Liquidity and probate decide whether the family sells at the worst time

The tax must be paid before the estate can be divided, and real estate is slow to turn into cash. Article 611 of the Code of Civil Procedure requires the inventory to be opened within two months and closed within the following twelve. A judge may extend those deadlines, but the costs start running on day one.

The notarial route has widened. A 2024 rule from the National Council of Justice now allows out-of-court inventory even when an heir is a minor or legally incapable. The condition is that this heir's share be paid as an ideal fraction of every asset and that the Public Prosecutor's Office agree. With a will, a notarial deed is also possible once the probate court authorises it.

Liquidity is planned in advance. The supplementary law exempts benefits from private pension plans and insurance, natural candidates to fund the tax and the costs of the inventory, as long as each product is used for its own purpose.

Numerical example: the same estate on two paths

The table compares two hypothetical paths for the same family. The figures are InnovaSphere assumptions, not market data. The 7% effective rate stands for a hypothetical progressive table capped at 8%; the table that applies is your state's.

The nominal gap of R$ 2.72 m is impressive and misleading. Discounted to present value at 4% a year, the costs almost converge, and the planned path ends up R$ 0.18 m more expensive. The reason is arithmetic. When the discount rate equals real estate appreciation, paying 7% today on R$ 40 m is worth the same as paying 7% fifteen years from now on R$ 72 m. What is left is the inventory saving, which here does not cover the structure.

The second stress test is harsher: if the real estate does not appreciate, the unprepared path costs R$ 0.80 m less. On the example's numbers, the nominal advantage requires appreciation above roughly 1.1% a year. In present value, it only exists if the cost of money stays below roughly 3.7% a year.

The conclusion is not against planning. It is against selling planning as tax savings. What you buy is predictability, governance and a family that never has to dump assets in a hurry.

When it does not pay off

The full structure may not pay for itself. Three situations call for caution before any deed is signed.

• A small estate, or one concentrated in the family home: running a holding company may cost more than the tax and inventory savings.
• A donor who still depends on the income and control of the assets: giving too early, even with usufruct, removes the freedom to sell or reinvest, and undoing a gift is not simple.
• A family without minimum consensus: a structure imposed on heirs in conflict only moves the dispute from the inventory to the shareholders' meeting.

On this subject, InnovaSphere works in collaboration with two group companies. InnConta handles the accounting and tax compliance of personal wealth, kept apart from operations. Valida Auditoria provides independent verification when a share appraisal has to withstand both the tax authority and the heirs themselves.

Checklist to structure the succession of a real estate estate

1. Map assets, shares and debts, with tax-return values and a market estimate, together with the family accountant.
2. Check the forced share, the necessary heirs and the property regimes of every marriage and stable union, with the family lawyer.
3. Read the ITCMD law of each property's state and of the donor's domicile, including brackets, the gift-aggregation period and the usufruct rule.
4. Review the articles of association and shareholder agreements of each company to cover a partner's death, incapacity and exit.
5. Commission a share appraisal using the method the new supplementary law requires, prepared by an independent valuer.
6. Calculate the cash needed for tax and inventory, define its source and test the plan against low appreciation and expensive money.
7. Formalise decisions in deeds, a will and a family protocol, and schedule a review at every change in the law or in the family.

Frequently asked questions on real estate succession planning

Does a family holding company still reduce ITCMD?

Not through book value. The new law requires unlisted shares to be valued at least at net equity adjusted to market. A holding company remains useful for governance, not for shrinking the taxable base.

Does a gift with retained usufruct avoid the tax?

No. Both the gift and the creation of the usufruct are taxable events. The legitimate effect is to bring forward the date of the taxable base. Whether that pays off depends on expected appreciation and on the cost of money.

Can I split gifts into smaller amounts to pay a lower rate?

Not within the period set by state law. Successive gifts between the same donor and recipient are added together, and the tax is recalculated at each new gift.

Can the inventory be done at a notary if one heir is a minor?

Yes, since 2024, provided the minor's share is paid as an ideal fraction of every asset and the Public Prosecutor's Office agrees.

What happens to a company's quotas when a partner dies?

If the articles of association are silent, the Civil Code orders the quota to be liquidated, unless the partners choose dissolution or reach an agreement with the heirs.

Legal basis

• Supplementary Law No. 227/2026, arts. 150 (II and III), 151 (II), 152, 154, 155 and 156.
• Federal Constitution, art. 155, § 1, VI, and art. 156, § 2, I.
• Federal Senate Resolution No. 9/1992: maximum ITCMD rate.
• Civil Code, arts. 544, 1,028, 1,053, 1,845, 1,846, 2,002 and 2,005.
• Law No. 9,532/1997, art. 23, and Law No. 9,249/1995, art. 23: transfer value and capital contribution.
• Law No. 15,270/2025: dividend withholding and minimum tax.
• Code of Civil Procedure, arts. 610 and 611; National Council of Justice Resolution No. 571/2024.
• Federal Supreme Court, Theme 796 of general repercussion.