In Italy, like in most legal systems, there are two primary modes of succession upon death: by law (intestate succession) or by will (testate succession). Intestate succession serves as a backup, covering situations where no will has been made, a will fails to take effect, or it does not fully dispose of the testator’s assets. The practical relevance of intestate rules largely depends on the frequency of will-making and whether those wills are comprehensive. Given that only about sixteen per cent of Italian citizens make wills, intestate succession plays a crucial role in the distribution of estates.
Types of Wills in Italy
There are several types of wills recognised in Italy. The main ones are outlined below:
- Public Will: Under Article 603 of the Civil Code, this type of will is drafted by a notary in the presence of two witnesses. As a public document, it serves as proof of its origin from the notary and of what was said or done in their presence (Article 2700 of the Civil Code) unless proven otherwise.
- Holographic Will: This is a more straightforward will, entirely handwritten, dated, and signed by the testator. It must meet three critical requirements for its validity: handwritten, dated, and signed by the testator (Article 603 of the Civil Code).
- Secret Will: As per Article 604 of the Civil Code, a secret will is written by the testator and delivered to a notary in a sealed envelope in the presence of two witnesses. The testator must declare that the document contains their will. If the testator is mute or deaf, the declaration and confirmation must be made in writing, and they must verify that the content reflects their wishes if someone else wrote the document.
Limits to Testamentary Freedom
In Italy, testamentary freedom is not absolute and is subject to several legal restrictions:
Prohibition of Successive Agreements: According to Article 458 of the Civil Code, agreements or acts concerning the future that have not yet been opened, as well as successions, are prohibited, except for the family pact. This includes:
- Renunciatory Agreements: Renouncing an inheritance before the testator’s death.
- Dispositive Agreements: Promising future inheritance assets to a third party.
- Confirmatory Agreements: Committing to leave an inheritance to another.
Joint and Reciprocal Wills: Italian law prohibits:
- Joint Wills: A single will made by two or more individuals.
- Reciprocal Wills: When multiple people make mutual provisions in the same document. However, separate wills benefiting each other are valid.
Inheritance vs. Bequest
Italian inheritance law distinguishes between heirs and legatees:
- Heirs continue the deceased’s personality, inheriting all rights and obligations. To limit liability, heirs can accept the inheritance with the benefit of inventory.
- Legatees receive specific assets or rights without assuming any debts. A bequest is automatic and does not require acceptance.
Intestate Succession Rules
In the absence of a will, the following principles govern the distribution of the estate:
- If the deceased is unmarried and has no children, the estate goes to their parents and siblings.
- If the deceased has children but no spouse, the children inherit everything equally.
- If the deceased leaves a spouse without descendants, parents, or siblings, the spouse inherits the entire estate.
- If there is a spouse and children, the spouse receives half of the estate if there is one child or one-third if there are multiple children. The children share the remaining portion equally, with any predeceased child’s share passing to their descendants.
- If the deceased leaves a spouse and parents but no children, the spouse gets two-thirds and the parents one-third.
- In all cases, the surviving spouse retains the right to reside in the family home and use the furniture if it belonged to the deceased or was shared.
It’s important to note that unmarried or unregistered partners are not entitled to any inheritance under Italian law unless expressly provided for in a will.
Reserved Share (Legittima)
Italian law guarantees a portion of the estate, known as the reserved share (legittima), to the deceased’s spouse, descendants, and ascendants. The specific shares are as follows:
- A single child is entitled to half the estate.
- Multiple children share two-thirds of the estate equally.
- The spouse and one child share two-thirds, while the spouse and multiple children share three-quarters.
- Ascendants (parents or grandparents) are entitled to one-third of the estate. If there is a spouse, the spouse gets half, and the ascendants receive one-quarter.
- The spouse always retains the right to live in the family home.
Beneficiaries cannot renounce their reserved share before the testator’s death. If lifetime donations exceed the reserved share, heirs can seek a reduction in the estate to balance their inheritance.
The Family Pact and Other Protections
In 2006, Italy introduced the family pact, which allows business owners to transfer their business to descendants without violating succession rules. This protects the estate from reduction claims by heirs while facilitating business continuity.
Article 563 of the Civil Code allows heirs to reclaim properties donated by the deceased if they were sold within twenty years of the donation. Third-party buyers can avoid this by paying the equivalent value of the property in cash.
The Succession Process
The opening of succession begins at the individual’s death, usually at their last domicile. The local court in this area has jurisdiction over any disputes. The call to inherit determines who is entitled to the estate, but a person only becomes an heir after formally accepting the inheritance. Acceptance can be full or with the benefit of inventory, which limits liability to the value of the estate’s assets. The called individual may renounce the inheritance if the estate includes significant debts.
By understanding these laws and processes, individuals can better prepare for succession through a will or by relying on the default intestate rules.
References
Intestate succession in Italy. Retrieved from https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2696417
A Braun – Comparative Succession Law, 2015 – papers.ssrn.com
https://www.giustizia.it/giustizia/it/mg_3_9_17.page#
https://elibrary.fondazionenotariato.it/articolo.asp?art=38/3813&mn=3
