A brief introduction

The Italian inheritance law is called ‘diritto successorio’ and comprehends rules that regulate the passage of an individual’s estate to his heirs either by will or by provisions of statutory regulations. The statutory laws that regulate succession are found in the LIBRO II - DELLE SUCCESSIONI in the articles from 456 to 809 of the Italian civil code. These norms aim to ensure the continuity of the active and passive relationship with the deceased. The succession can be done by testamentary disposition or by state’s law dispositions.

Should be done a distinction between the legal relationship belonging to the deceased transferred by cause of death or on the occasion of death: in the first case, is assumed the call and the acceptance of the quality of heir while the second one identifies the person that by law will personally take over the deceased.

What can’t be transferred are rights of personality, credits of personal nature and duties to do.

The succession by cause of death can be done by title of universality, following the acquisition of the status of heir, or in particular with the disposition of the will of the status of legatee, namely a person to whom a good is conferred, but that is not the heir of the deceased. The legatee is, in fact, a person to whom a single or a set of goods is specifically given, while an heir is a person who is called to succeed in their proprietary interest.

He will be accountable for all the deceased's goods even beyond the sole asset.

The heir status is subordinate to the acceptance of the inheritance (Art 459 c.c.).


The delation and inheritance vocation.

The ‘delazione’ namely the delation, is the offer of the bequest, and it corresponds with the time of the opening of the succession hence with the time of the actual or presumed death; while the ‘vocazione’, meaning the origin, is the title at the base of the denunciation namely testamentary or legal succession.

The person called to the succession cannot ignore the testamentary delation to dispose of the legal one even if it is the potential heir of the legacy.


The called to succession, the lying inheritance

Here we should distinguish the called not in possession of the goods and the one that is.

In the former case, the right to accept the inheritance laps in 10 years, while the latter is given a shorter time to decide whether to accept it.

The called in possession of the goods is in charge to form the inventory as a third-party guarantee.

For the movable goods, if the one called does not do the inventory within the time abovementioned, he is considered pure and simple heir.

The interest of the called one in the phase before the acceptance is only the one to maintain unaltered its situation. He can exercise his possession order application without the need of the material owning of the goods (Art.460 c.c.), can do conservative, surveillance and temporary administration act and he can be allowed to sell the goods that cannot be kept if their maintenance is too expensive (Art 460 Co. 2 c.c.).

If the called one is in possession, the goods also have the duty to form the inventory in a short time as a guarantee of third parties; if the called does not do the inventory, he will be considered pure and simple heir. The called not only has all the rights stated in Art. 460 c.c. but also the right to represent the inheritance if it was brought proceedings against. If the called one would not do it, he will appoint a curator with only the overmentioned task.

Suppose the identity of the called to the succession is not known or he may have never existed; in that case, the Tribunal of the place where the succession has been opened will appoint a curator for the estate that will end its functions when the inheritance will be accepted. The curator is just an administrator of the asset in a conservative role.


The acceptance of the bequest

The status of heir is acquired through the acceptation, whose effect retroact at the time the succession has been opened; in most of cases, this is a voluntary act.

But there are some hypotheses of acquisition ex lege.

  1. The called to the succession which have subtracted or hidden goods belonging to the asset will be not allowed to renounce; therefore, becoming a pure and simple heir.
  2. The called to the succession that is in possession of the goods must form the inventory three months from the day he knew about the delation; after that period, the called is considered pure and simple heir.

With the acceptance, you accept the status and quality of heir.

The acceptance can be implied or expressed.

The first one means to act in a way that presumes the obvious will to accept the inheritance and that the person didn’t have the right to do if not in the status of heir (Art. 476 c.c.).

Then there is the expressed acceptance, namely when the will to acquire the quality of heir is expressed directly in a formal act either by private writing or by public deed.

The acceptance can be null if it is biased or has a term (Art.475 Co.2 c.c.) and if the acceptance is done in part and not towards the whole, as long as the quality of heir is indivisible and unitary.

The acceptance can be refused; in this case, there is the need for the acceptance of the counterparty being the succession a bilateral contract; the renunciation, therefore, is more correctly called translative negotiation.

The right of acceptance can be lost; it will expire in 10 years if the called is not in possession of the goods or even just one good, or a time term can be fixed by the judicial authority no longer than which the called to the succession has to let know if he accepts or not or the inheritance, or, if he formed the inventory without declaring the acceptation, do not accept in the next 40 days.

The acceptance with the benefit of inventory aim to avoid the patrimonial consequences of becoming an heir limiting the patrimonial responsibility within the value of the de cuius’ heritage.

It is done by declaration received by the competent local notary or Tribunal and transcribed in the property registry office; you have a time of three months to do the inventory that eventually can be extended to another max of 3 months nonrenewable.

Then here is a difference between the called in possession of the goods and the one not in possession of them as mentioned before.

Once the inventory is formed, is produced the effect of the law that keeps divided the heritage of the deceased from one of the heirs (Art 490 c.c.) therefore:

  1. The heir retains all the rights and obligations he had towards the deceased, towards the inheritance except those that extinguished as a result of death.
  2. The heir is not required to pay the debts and legacies beyond the value of the assets received. In other words, his assets will not be involved in any way by the obligatory events already belonging to the deceased, without prejudice to the provisions of Art. 497 c.c.
  3. Creditors of the heir and legatees have preference over the inheritance against creditors of the heir.
  4. Creditors and legatees can protect themselves and equally obtain the juridical effect of the preference by asking for the separation of assets.

The legal effect of the distinction between the deceased's assets and the heir's assets, therefore, ceases not only if the heir renounces to the benefit but also if it lapses due to a whole series of non-compliance with the terms of the inventory, or for wilful infidelity in the compilation of the inventory (Art. 494 c.c.), or if they alienate inherited assets subjecting them to pledge or mortgage or settle them without prior notice judicial authorization (Art.493 c.c.).

The benefited heir administers the heritages as well as he is accountable for dolus and culpa grave towards the creditors and legatees, and he must always provide a guarantee (Art.492 c.c.) and, at their request, give accountability (Art.496 c.c.).

The highest point of the inventory procedure is the satisfaction of the creditors and legatees, namely proceeding to pay them as they show up or, if the heir doesn’t want to proceed like this, he can choose the path of the collective winding-up.

Moreover, if the heir does not want to handle that he can appoint a curator. 

Be aware that minor and interdicted persons can accept a heritage only with the benefit of inventory.


Renounce to the succession

The renunciation can be done at any moment after the opening of the succession.

 As well as the acceptance, the renounce has a retroactive character, and it is null if done under condition, under a term or just in part and can be appealed for violence and dolus.

You cannot accept and then renounce the inheritance.

The impeditive refusal (namely the renounce) can be done with a unilateral declaration given to the notary of the Tribunal’s chancellor.

If anyone renounces damaging his creditors, the latter can, before five years, ask to be permitted to accept the succession in name and place of the renouncer to satisfy their credit.


Prohibition of succession agreements

It is considered null any agreement of disposition or renounce to the rights in successions not yet opened (Art.548 c.c.); those agreements are called ‘patti successori’. Those agreements can be: instituing, (when you dispose of your succession outside the testamentary instrument creating a contractual vocation) disposing, (when you dispose of rights that can be yours in a future succession) renuncing (if you renounce to those rights before the opening of the succession).

Testamentary and legal succession

When a testament has not been done by the deceased or if it is invalid, the choice is the one of the legitimate successions that can coexist with the testamentary one as long as the de cuius has disposed just some goods and not the others.

Legal succession

In legal succession, the inheritance is given to the spouse, the legitimate and natural descendants before the sixth grade and the state. The legislator establishes some norms to set the time and the order of the calls and the quote.

Firstly, the legitimate and natural children and their descendants are called to the succession all in equal part or if there is just one child for the totality. If there is also a spouse to their is given half of the inheritance if there is one child, or 1/3 in the other cases, whether the half or the 2/3 goes to the child or children all in equal part. If the de cuius did not have children, the heritage goes to the parents, the ascended or the siblings.

If there’s no descendant, the inheritance is given to the state.


Testamentary succession

A testament by Art. 587c.c. is a revokable act with whom a person disposes of their asset when will be no longer alive.

A testament is an act of mortis causa disposition of the deceased’s assets, so it follows that the law asks to be able to act and to be compos mentis while writing it, it follows that are unable to testate minors, interdicted persons and natural incapable persons (Art 591 c.c.).

The inability is to be referred at the time the testament is done and not at the time of the opening of the succession; this is done to protect the full will of the testator.

A particular clause on the testament is the motif therefore, a mistake on the motif or an illicit one causes the nullity of the disposition.

In conclusion, the deceased in his testament can only dispose of a part of the assets, the so-called available quote, while a part must be necessarily given to the legitimate heirs the so-called reserve quote. 

After deducting the reserve shares, what remains of the estate is the available share, that is, the share that the testator can dispose of in total autonomy.

Suppose the testator also disposes of the reserved quote, exceeding the limits of the available one. In that case, the legitimate heirs can exercise the action of reduction, as required by Article 554 of the Civil Code.

To establish the deceased's assets on which the reserved quote has to be calculated must also be taken into account the amount donated during the deceased's life.


Forms of testament

The public testament

The public will is signed and drawn up in the presence of the notary and two witnesses; it remains secret until the binder's death and is clearly kept by the notary himself until the death of the de cuius. The witnesses of the binder cannot be chosen randomly but must respect peculiar qualities.

Although there are other types of wills, the public one is the only one drawn up by those who don’t know how or are unable to write. 

The public testament will be null and void when there is no written drafting by the notary of the testator's declarations or the testator's signature and/or notary. 

For other formal problems, it can be annulled at the request of anyone interested in it. 


The holographic testament

When the succession is opened, the holographic testament must be published as long as everyone must know the content (Art. 620 c.c.)

The holographic will is nothing more than an act that contains the last wishes of the binder, written entirely by his hand.

For its validity, neither witnesses nor filing with a notary are required.

However, to protect those who decide to use this legal institution, it must meet certain requirements.

Firstly, to be valid, a holographic will must be drawn up entirely by hand by the person who decided to dispose of his assets in this way. Parts written by others, machine or computer, are not allowed. This is because the writing must be recognizable and traceable to the binder. Otherwise, it is null.

The date must be indicated, and the signature of the person in question is required.

The holographic will can be kept by the testator himself at home, entrusted to a third party or to a notary, who will arrange for its publication after the binder's death.

The same procedure is done for the secret testament.

The holographic will is void when it lacks the requirements indicated in Art. 606 of the Italian Civil Code and can be cancelled if the date requirement is lacking.


The special testament

As the name already implies, the special will can only be done in exceptional cases.

The special will is permitted in cases where a person is in imminent danger of life and is unable to go to a notary or write a deed.

It is foreseen in cases of contagious diseases, public calamities or accidents, or when the person is on board a ship, an aeroplane or is a soldier.

This form of testament must be received in the presence of two witnesses, and it loses its validity after three months from the normalization of the event when the testator is able to write an ordinary will.


The secret testament

Regarding  the secret will, no one, apart from the binder, knows its content. It has to be delivered to the closer notary and is sealed either before or upon delivery. For this type of bequest, two documents are required: one is the actual will, while the other is the receipt.

Unlike the holograph, it can be written by hand, machine, computer or third parties. If it has been drawn up by mechanical means, it must be signed at the end of each page and in the middle of the sheet.

For the secret will, unlike the other wills, the legislator has provided for a hypothesis of conversion into a holographic will if there is any defect but contains the requirements of the holographic will.


The international testament

An international testament is a form of will that is used to dispose of one's property after death when:

  1. The testator or the assets he possesses which would be the object of the succession have an international character;
  2. As an alternative form to those traditionally provided for by the Italian legal system.

It is an international private law document drawn up by notaries in the national territory or by diplomatic and consular agents abroad.

The international will is made up of two parts: the testamentary form and the certificate.

The testamentary form is a document that contains the testator's provisions, while the certificate is a document that certifies the execution of all the formalities required by law.

The testamentary form must be written by the testator or by a person chosen by him; by any means of writing or manually and in the preferred language.

The testator must declare it in the presence of two witnesses and a notary, or other qualified persons, in order to assure that the testament belongs to him and he knows its content.

The testamentary form must be signed at the end of the list of testamentary dispositions, by the testator and immediately afterwards, in his presence, by the witnesses and by the notary or by the qualified person.

If these requirements are not respected, the will is void. However, the validity of the null international will is admitted in the form of another kind of will.


Invalidity, ineffectiveness and non-existence of the will

The invalidity of the testamentary occurs when there is a defect such as to produce its nullity or annulment: the defects can be of a formal or substantial nature.

Substantial nullities are cases in which the testamentary dispositions have content contrary to the law. Furthermore, under articles 1418-1419 of the Italian Civil Code, even if a testamentary disposition is null, this does not render the entire will null and void.


The revocation of the testament

A peculiar characteristic of the testament is its revocability until the day of the death (Art 679 c.c.).

The so-called ‘revoca espressa’ can be done exclusively with a new testament or with an act received by a notary with the presence of two witnesses where the testator expressively declares that he wants the testament to be revoked in whole or in part (Art. 680 c.c.).

The revocation of the testament can be in turn, revoked.

There is also a revocation resulting from typed conclusive behaviours meaning that is the law that connects to certain behaviours a judicial effect, therefore a further testament that will not revoke the precedent ones will undo the dispositions which are incompatible with them (Art.682 c.c.).

The holographic testament, destroyed or cancelled in whole or in part, is considered in whole or in part revoked unless it is proved it has been destroyed or cancelled by a person that is not the testator (Art 864 c.c.).

The Italian law dispose of a withdrawal right for those who did not know they had children at the time of the testament.

The inheritance division

The law dictates a series of complex rules to regulate the division of the inheritance.

The division assumes that the deceased has appointed several heirs for ideal quotes and not for indipendently identified assets.

The rules on the division of the inheritance constitute an autonomous discipline utterly distinct from the general one that supervises the ordinary division (Articles 1100 ff. c.c.)

The subjects of the division are called Co-heirs.

The division can be avoided whenever the deceased has personally carried it out (Art.734 c.c.), as well as it can be postponed if he disposed of so (Art.713 c.c.)


Contractual division

If all co-heirs agree, then the contractual division takes place.

The contractual division can be challenged for violence or wilful misconduct (Art. 761 c.c.) but not by mistake.

It is also possible to terminate the contract for damage if one of the co-heirs proves that he has suffered damage concerning his share of more than a quarter (Art. 763 c.c.).

The co-heir against whom the rescission action is brought may stop the course preventing a new division by offering the supplement of the hereditary portion (Art. 767 c.c.), which must cancel the imbalance in its entirety.


Judicial division

If unanimity of consensus is not reached, the judicial division must be carried out at the initiative of any co-heir concerned. 

All co-heirs must be called to participate in the judgment in this case; the division will be made with a sentence that can be challenged in the ordinary forms provided by the code.

The division can also be done by the testator preventing the arising of communion; in this way, he will also be able to establish which assets to assign to the individual heirs.

However, if the de cuius fails to include any of the legitimates or the heirs, the division is null and void (Art. 735 c.c.). The heirs are required for the payment of debts, in external relations to creditors, personally in proportion to their hereditary quote and about the mortgage to the whole (Art. 754 c.c.). However, in internal relations, the co-heirs contribute equally in proportion to their inheritance shares. Important is the principle that aims to safeguard the integrity of the immovable properties that cannot be easily divided or whose division would prejudice the reasons of the public economy, hygiene (Art. 720 c.c.), national production (Art. 722 c.c.) or those immovable properties which, if divided, would lose their intrinsic value. 

Suppose he wants to alienate his hereditary share or part of it to a stranger. In that case, the co-heir must notify the proposed alienation, indicating the price to the other Co-heirs who have the right of pre-emption to be exercised within two months from the last of the notifications. In the absence of notification, the co-heirs have the right to redeem the share from the purchaser and any subsequent successor as long as the status of the communion of inheritance lasts.


The collation

The collation is linked to the principle according to which it is believed that the deceased by making direct or indirect donations to the spouse, to legitimate and natural children and their descendants, did not intend to change the proportional relation of the asset in which they are called to succeed.