Italian probate: how to be recognized as heirs?
In Italy, before probate can be granted, it is necessary that the heirs are recognized as such.
The status of “heir” is not acquired automatically, and, at the same time, probate is not automatic.
This clarification is essential to introduce what follows.
Indeed, it is only whenthe probate is granted and the inheritance accepted, that the person interested in the succession acquires the qualification of an heir, that is becomes the successor of the deceased person’s estate.
In the Italian legal system, heirs are reserved the right to promote inheritance claim actions in order to have their status as heirs recognized against apparent heirs or anyone else unduly holds the deceased person’s properties, thus obtaining the restitution of the properties in question (see Article 533(1) of the Italian Civil Code).
This right is not subject to prescription, except for (where applicable) the effects of usucapion.
Italian inheritance law also recognizes the right of the heirs to promote a Petition for Recovery of Legitim (see articles 553ff. of the Italian Civil Code), aimed at completely or partially invalidating both inter vivos and mortis causa acts in case of violation of the legitim share of the heirs.
A Petition for Recovery of Legitim consists of three different actions, depending on the different phases of the probate process and according to the different persons involved:
- action aimed at declaring completely or partially void all testamentary provisions and/or donations exceeding the share of the estate of which the Testator could dispose freely;
- action against the beneficiaries of the above mentioned provisions, aimed at recovering the rest of the deceased person’s estate still possessed by them;
- action against third-party purchasers, with the same aims as above. In this case the recovery action is taken by the beneficiary against the assignees.
Accepting and renouncing an inheritance in Italy
Starting from these premises, according to the Italian legal system, the acceptance of an inheritance is a legal act, allowing a person (the heir) to assume ownership of the assets of an estate, with retroactive effect as from the opening of the succession.
The opening of the succession is regulated by article 456 of the Italian Civil Code, which provides that the probate begins after the death of a person, in the deceased person’s last place of residence.
More in detail, one can accept the inheritance:
- expressely, when the heir declares his/her willingness to accept the inheritance by means of a notarial or private deed;
- tacitly, when the acceptance to inherit assets can be implied or inferred from the beneficiary’s acts.
The inheritance can also be accepted with reservations. In this case the heir declares, before the Court Clerk or before a Notary Public, his/her willingness to accept the inheritance without mixing his/her personal properties with the assets of the deceased person’s estate, thus keeping separate the two estates.
Acceptance with reservations is particularly recommended when the deceased person leaves debts. Since Italian inheritance law provides that heirs inherit both the assets and the debts of the deceased person, acceptance with reservation allows the heirs to be liable for the deceased person’s debts only in case the debts on the assets do not exceed the value of the property to be inherited. Acceptance with reservation becomes mandatory by law when the heir is a minor, an incapacitated person, or an association.
The right of accepting an inheritance lapses after ten years following the deceased person’s death.
In case of renunciation of an inheritance, the heir renounces the inheritance in its entirety. The renunciation of an inheritance can be made by means of a statement before a Notary Public or at the office of the Clerk of the Court.
Italian probate: succession in Italy
Among the fiscal obligations to be fulfilled after the deceased person’s death there is the so called Statement of Succession.
The Statement of Succession consists of a form that contains:
- the personal data of both the deceased person and the heir;
- the family tree;
- a list of the assets of the estate with their respective values.
The Statement of Succession has to be submitted to the Italian Tax Revenue Office within one year after the opening of the succession and is aimed at allowing the above mentioned Office to calculate and to collect the registration tax.
It is worth noticing that the Statement of Succession does not imply the acceptance of the inheritance by its subscriber. Thus, once having subscribed and submitted a Statement of Succession, the heir willing to renounce the inheritance will have to submit a second statement, amending the first one, in order to substitute the beneficiaries named in the first statement with the heirs who subsequently accepted the inheritance.
Although requiring neither the intervention of a Notary Public, nor an authentication, producing a Statement of Succession is quite complicated. It is thus recommended to ask for professional assistance, since any error or mistake may lead to the loss of tax benefits or to tax penalties.
If you need support for any issue relating to Italian probate, our law firm offers assistance for promoting actions aimed at recognising the status of heirs, as well as for promoting inheritance recovery actions.
We assist our customers with producing and filing the Italian Statement of Succession, as well as in writing Wills fully compliant with Italian inheritance laws. We also provide legal counsel and affidavits in matters of international succession.
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