There are two types of succession: testamentary succession, when it is governed by a will, and intestate succession (legitimate succession), when it is regulated exclusively by law. In any case, the Italian legal system provides that a share of the estate, the so-called “legittima” (forced share), is reserved by right to the closest relatives. Thanks to the notary’s specific expertise in this field, his assistance is extremely important in making the choices best suited to one’s needs and in handling all the steps required for a secure succession.
What it is
By succession on death, one person replaces another in one or more legal positions that do not extinguish upon death.
From the point of view of the assets involved, succession may be of two types:
- testamentary succession: when it is governed by a will;
- legitimate (intestate) succession: when there is no will, succession is governed by law.
If a will exists but does not cover the entire estate, the succession will be partly testamentary and partly intestate.
Certain persons – such as the spouse, descendants and, in the absence of descendants, ascendants – are in any case entitled to a share of the estate. This right to the forced share (“quota di legittima”) constitutes a limit on testamentary freedom and falls within the so-called necessary succession.
Inheritance tax
Succession on death entails a number of obligations from a tax point of view. In particular, within one year from the opening of the succession, the heirs must file the declaration of succession with the competent office of the Italian Revenue Agency (Agenzia delle Entrate). This declaration contains the personal details of the successors and the description of the assets forming part of the estate, and is instrumental to the payment of inheritance tax. It is a tax obligation of fundamental importance, as it is an indispensable condition for being able to dispose of the assets received by reason of death.
Acceptance of the inheritance
In order to acquire the inheritance, it must be accepted. Acceptance (which may not concern only part of the estate) may be express, by means of a deed received by a notary or by the clerk of the court of the place where the deceased had his or her last domicile (and, in the case of minor or legally incapacitated heirs, subject also to the authorisation of the judge), or tacit, that is inferred from conduct showing the intention to accept (for example, by transferring one’s residence to the home received as an inheritance). If the heir accepts, he or she also assumes the deceased’s debts.
For this reason, the law provides, with the same formal requirements as for express acceptance, the possibility:
- to renounce the inheritance, that is, to refuse it (with the consequence, however, that the descendants will then be called to inherit);
- to accept with the benefit of inventory (which is compulsory in the case of minor or legally incapacitated heirs, or legal persons), so as not to be liable for the deceased’s debts with one’s own personal assets, but only within the limits of the value of what has been inherited.