Succession refers to the transfer of assets and liabilities to one or more heirs due to someone’s death. The succession procedure starts when someone dies and it ends with the allocation of the estate to the heir, or if more than one heir with the division of the assets.
The heirs (“eredi”) may inherit the deceased’s entire estate or part of it, as per their shares – “successione a titolo universale“. They are required to accept the succession to inherit the share of the estate they are entitled.
The legatee is someone that inherits a specific asset as identified by the testator. The legatee is liable for the deceased’s debt, up to the value of asset devolved to him or her – “successione a titolo particolare“.
When someone dies, the first step is to verify the existence of a Will.
Normally the Notary who drew up the will, once the testator passes away, informs the heirs of their rights and carries out the formalities necessary for succession. If there are still doubts about the existence of the will, it is possible to request it from the notary council in the area of the deceased’s last domicile – we look into this aspect in more detail here.
a) When the deceased leaves a Will: the estate is shared out according to the testator’s wishes, within settled limits. This is called “Successione Testamentaria” or testate succession.
Within the testate succession, the Italian law sets out the so-called “legittima”. This is a statutory right entitling the closest relatives (“legittimari“) to inherit a share of the estate, according to a principle of solidarity. Therefore, it is not on the deceased to dispose of his or her entire estate but of a portion of it, while the other portion is reserved for the closest relatives.
b) When someone dies without leaving a valid will: the estate is shared according to statutory rules, the so called “Successione legittima” (Intestate succession). The same happens when a Will is not legally valid or when it only deals with a part of the estate so the remainder is regulated by the intestacy rules.
Who can inherit under the rules of intestacy?:
The persons entitle to inherit under the provisions of the intestate succession are called “successori legittimi” and they are:
Whether or not there is a will, it is necessary to submit a “Dichiarazione di Successione” (Statement of Succession or Declaration of Succession) to the Italian Tax Agency (Agenzia delle Entrate) within 12 months of the deceased’s death.
The declaration must mention the entire deceased’s estate, including immovable and movable properties, current accounts, deposits, pensions, credits, shares, bonds, and company shares.
The heirs are required to pay taxes as calculated by the tax authority.
Having submitted the declaration and paid taxes, the heirs may request banks to release the funds held in the deceased’s current accounts. Regarding the real estate, the heirs or their delegate send the succession report to the Land Registry (Catasto), for transferring the inherited properties into the beneficiaries’ name (voltura catastale).
The procedure may be complex, depending on the extent of the estate, so it is advisable to ask for the assistance of a professional.
a. What documents do you need for the Declaration of Succession?
b. When to do it? Exemptions.
There is no obligation to submit the declaration if the following conditions apply simultaneously:
In the Italian legal system, you may obtain the status of heir expressly, by deed before a notary (atto pubblico), by agreement certified by a notary (scrittura privata), or by conduct i.e. making an act that presumes the intention to accept – a sale of an asset, a donation, or renunciation in favour of only some heirs. Interestingly, the declaration of succession is not an implied act of acceptance, but it is relevant for tax purposes.
Once the inheritance is accepted, the heir is liable for any debts of the deceased, even if the debts exceed the value of the inheritance assets.
Therefore, to avoid this, the Italian legislator has provided for an acceptance with the benefit of inventory; it means that the heir will pay the debts within the value of the estate, with the inherited assets.
In this case, the law requires a declaration of acceptance before a notary with an inventory of assets. The heir has a three-month period from the declaration of acceptance to produce the inventory.
If the heir is in possession of the hereditary assets, the period to complete the inventory is 3 months from the date of death. Once the inventory has been produced, there are 40 days to accept or renounce the inheritance, (unless the declaration of acceptance has been already made).
The acceptance with the benefit of inventory may apply to all heirs but law requires it for incapable individuals (as minors for example).
The deadline for the declaration of acceptance (with or without inventory) is ten years from the day of the deceased’s death.
In case the acceptance occurs when the deadline has expired, the heir is not able to claim his right of acceptance. As a result, when no one has claimed the right to accept the inheritance within 10 years, the estate will be devolved to the State.
The heir has the right to renounce the inheritance (technically the status of heir) within 10 years from the date of death; once expired it, the heir is not entitled to claim his right anymore.
The renounce extents its effects to the entire estate, assets and liabilities. The heir who intends to renounce has to make a declaration of renounce before a Notary.
Under the Italian law, a Will may be “holographic”, public or secret.
a. The handwritten or holographic Will:
The testator makes the Will by hand, dates and signs it, then kept in a safe place or with a person of trust. The handwritten Will is void when the testator’s signature is missing. It will be voidable within 5 years from the date of publication of the Will for minor defects as the absence or inaccuracy of the date.
b. Public Will:
The Notary receives the testator’s wishes and drafts the Will that is signed and dated in the presence of two witnesses and the testator. The Will is void when the notarisation or the signature of the notary and the testator himself is missing. It will be voidable within 5 years from the date of publication of the Will for minor defects.
c. Secret Will:
The secret Will is drawn up by the testator or by a third party by hand or by other means, signed only by the testator, and sealed. The Notary receives the Will in the presence of witnesses and the testator and prepares a return report notarised, dated, and signed, by the Notary, the witnesses, and the testator. The testator can decide at any time to withdraw. The secret Will is void when the written receipt is missing and when the signatures of the notary and the testator are missing.
d. International Will:
The Washington Convention of 26 October 1973, ratified by Act no. 387 of 1990, sets out a Will which can be used by Italians in Italy and abroad and also by foreigners in Italy. The International Will is not handwritten, the testator hands it out to the Notary or diplomats, in the presence of two witnesses. The testator’s disposition will not necessarily be revealed to the Notary. The Will is signed by the testator, the Notary, and witnesses, and the Notary dates it.
This article was written by Sara Bocci and Caterina De Carolis
This article is posted by Mazzeschi Web Content Manager. Should you need any further information, please do not hesitate to contact us at info@mazzeschi.it. Follow us on social media @StudioMazzeschi to receive the latest updates.
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