Italian inheritance law: what to do to claim or disclaim your inheritance
The law of inheritance or law of succession regulates the matters following an individual's death, after which the succession will be opened and it may be of two different types:
- universal succession, that is when the heir takes over the legal patrimonial position of the deceased (de cuius);
Therefore, the heirs receive the property rights of the deceased and take over in all legal situations related to the deceased, that may be both assets and debts (family inheritance).
- selective succession, in which the heir becomes the “legatee” and succeeds only in one or more relationships specifically determined.
In compliance with Articles 587 and 588 of the Civil Code, the following patrimonial situations may be devolved to third parties:
- personal property relationships (ex. credit-related rights);
- property relationships of true nature;
- ongoing contracts.
The necessary condition by which the heir takes over in the property relationships of the deceased is that the heir has accepted the inheritance and therefore acquires the debts of the deceased as well.
Italian inheritance law: who gets what Italian inheritance law: who gets what and different typologies
An individual's death is hence followed by the “probate”, which, in compliance with the Civil Code, may be as follows:
1. legitime (rightful inheritance), when the deceased has not provided anything and thus the Law intervenes to re-allocate the individual's assets.
The family members who inherit by law are: the spouse, the children (legitimate, natural, legitimised and adopted), the siblings (if there are not any children), the ascendants (in absence of any children), and other family members within the sixth kindred degree.
In case there are not any legitimate heirs, the inheritance is devolved to the State.
2. testate succession, where the deceased leaves a will. Those who are not considered incapable by law (minors, individuals affected by mental infirmity and naturally incapable) may dispose by will.
There are different will typologies:
- holograph will, handwritten;
Unfailing elements include date and signature, the will may be stored in any safe place. It may also be secret, and in this case a notary, who does not know its content, will keep it safe;
- notarial recorded will (public testament), that is drafted in presence of witnesses and recorded by a notary, who will also take care of keeping it secure;
3. necessary succession. Even if everyone is free of disposing of his own property as he wishes, following his death, a portion of it shall be granted by law to the legitimised heirs (spouse, natural, legitimate, legitimised, adopted children and legitimate ascendants).
Therefore, even if the will states something different, a portion of it (legitimate share) shall be due to the legitimised heirs, who shall not be mistaken for the legitimate heirs that contrarily will be granted by law with a portion of inheritance in absence of will.
Therefore, in presence of legitimised heirs, the inheritance shall be distinguished in two parts: legitimate and available.
Italian inheritance law: how to accept or waive your inheritance
Those born or conceived at the moment of the opening of the succession (as long as born within 300 days from the death of the deceased) may succeed.
Legal persons and not-recognised entities may also succeed.
The inheritance acquisition does also imply acceptance, which may be:
- stated, by means of declaration of succession given before a Public Officer (public act) or by private notarised writing.
It shall not be conditioned to any condition or term, as in this case it would be null.
- tacit, by means of a certain behaviour from which it is possible to infer acceptance.
The term within which to accept is 10 years from opening of succession and its effects are retroactive to that moment, regardless of the date when it has been conducted.
In relation to waiver of succession, it shall be stated by official declaration to the notary or to the chancellor of the court of the place in which opening of succession has occurred. Partial waiver and application of conditions or terms shall not be accepted.
By means of waiver, the person appointed as the heir will not take over in the patrimonial situation of the deceased and will be considered as if he has never been called for the inheritance.
After 10 years from opening of succession, the right to disclaim or accept is lost.