Testamentary legacy in Italy

In simple terms, a testamentary legacy represents a specific provision through which a person, by means of a will, decides to assign one or more particular assets to chosen individuals, called legatees.

This modality allows the testator to allocate with attention valuable assets such as jewellery, works of art, sums of money or real estate, avoiding division among heirs.

A law firm for successions, like Boschetti Studio Legale, can support you in drafting the will and ensure that every provision is correctly expressed without errors.

As already anticipated, the testamentary legacy represents that fundamental legal instrument through which a person, by means of a will, disposes of certain assets or rights in favour of a legatee.

It is distinguished from the inheritance in that it confers a specific and limited right, rather than a share of the entire inheritance patrimony.

The legacy, therefore, is configured as an act that reflects the will of the testator consisting of wanting to attribute directly assets or advantages to certain persons, without necessarily involving the entire group of heirs.

Within the framework of legacies, two significant categories are found: the sublegacy and the prelegacy.

• The sublegacy occurs when the performance in favour of a subject (the sublegatee) is at the expense of another legatee, rather than of the heir themselves. The sublegatee emerges as an autonomous subject called to the succession by particular title, being able to receive assets or performances independently of the main legatee. Furthermore, the sublegacy can be both real, concerning specific assets, and obligatory, referring to general performances.
• In contrast to the sublegacy, the prelegacy implies a legacy attributed to one of the heirs or to multiple co-heirs. This legacy integrates two distinct roles: that of co-heir burdened and that of legatee, thus binding the beneficiary to two distinct patrimonial attributions, namely the assignment as heir and the acquisition of the legacy. Such duplicity of functions allows the prelegatee to manage their right flexibly, since they can accept the legacy while renouncing the inheritance.

It is crucial to highlight that the prelegacy is considered a legacy for the entire amount of the succession, weighing on the entire inheritance, and therefore also on the share that pertains to the legatee in their capacity as heir.

This characteristic implies that the prelegacy significantly affects the composition of the inheritance patrimony and the distribution of rights among heirs.

In conclusion, the testamentary legacy, with its various variants such as the sublegacy and the prelegacy, reflects the complexity of the patrimonial relationships within the succession.

Through these provisions, the testator can manifest their will in a detailed manner, allowing precise and targeted organisation of the patrimonial succession, which takes into account the needs and expectations of the beneficiaries. The regulation of these legal institutions not only ensures greater clarity in the management of patrimonies, but also offers an opportunity to personalise and direct testamentary wishes effectively. Thanks to our experience, we can help you to draft the formula of the testamentary legacy suited to your needs and to ensure that your wishes are respected without unforeseen events.

What are the most common forms of legacy?

It is fundamental to understand that there are various typologies of legacy. Some are specifically provided for by law, while others derive from consolidated practices in testamentary provisions.

Boschetti Studio Legale will help you to know the main and most widespread categories of legacy, and this can be useful to you if you have to interpret or manage a will that provides for such provisions.

• Legacy of single assets. In practice, the legacy that attributes the right of ownership on specific assets is the most frequent case, including also the real estate (so-called testamentary legacy of immovable) that is part of the patrimony of the testator at the moment of their death.

This form of legacy allows the testator to designate particular assets of their patrimony to chosen recipients, ensuring that their last wishes are respected with accuracy and attention to detail.

The regulation provides that, when a legacy concerns the ownership of a specific asset or a real right of property of the testator, the transfer of such right to the beneficiary takes place automatically with the death of the testator.

In practice, at the moment of death of the testator, the legatee, that is to say the person to whom the asset is destined, does not have to decide whether to accept or not the asset, since they immediately become the owner.

This represents another important distinction between legacy and inheritance: as known, those who receive an inheritance, or a part of it, must express their acceptance to come into possession of it.

• Legacy of universality. Another common type is the legacy of universality of assets.

The definition of “legacy of universality” refers to a testamentary provision in which a testator decides to leave a complete set of assets. This could include, for example, an entire collection or a category of assets, such as a personal library or even an entire business.

A good example of legacy is that of a passionate reader who decides to donate their precious library to a grandchild. In this case, the legacy is not limited to one or two specific books, but includes the entire collection of books that the testator possessed at the moment of their death.

It is important to underline that, in similar circumstances, the beneficiary, or legatee, receives everything as a single “package”. They do not have the possibility to accept only some parts of the universality, such as some favourite books from the library: they must take everything or completely renounce the legacy.

The legacy of universality is distinguished from the others in that it considers a set of assets as a single entity, rather than as individual elements. Remaining on the example of the collection of books, this ensures that the entire “collection” is preserved and transferred to someone who, hopefully, will appreciate it as much as the testator.

The category of legacy of universality also includes the legacy of inheritance and the legacy of business.

Of these, however, being particularly complex, I will speak in separate articles.

• Legacy of sums of money. When mentioning a “legacy of sum of money”, reference is made to a specific provision in a will, through which the testator decides to leave a certain sum of money to a person.

For example, you might find in the will phrases such as “I leave to Mario 10,000 euros for the affection he has shown me”. This represents a classic example of legacy of sum of money.

At the death of the testator, therefore, the legatee will be entitled to receive that sum (from the heirs or, in any case, from the person or entity indicated by the testator).

The legacy of sum of money, which can manifest itself in various forms in practice, can prove particularly complex depending on how it is drafted.

A significant problem, in practice, concerns the identification of the source from which the liquidity must be drawn to pay the legatee.

Generally, in the simplest and most linear cases (as in the previous example), the beneficiary, or legatee, is not required to worry about where the money will come from. It is the task of the heir who manages the inheritance to decide from which source to draw the specified sum. This implies that the heir can decide to use funds from a specific current account, from other inheritance assets or even from personal resources to satisfy the legacy.

However, it can happen that the testator has indicated a source from which to draw the funds, for example a current account that, at the moment of the testator’s death, is no longer active or does not contain sufficient resources.

In such situations, the question becomes very complex for the heirs and legatees involved, and is not always easy to resolve.

In summary, the legacy of sum of money can be a very useful instrument for the testator, but if not managed correctly, it can give rise to considerable difficulties.

• Legacy of alimony. Through this legacy, the testator imposes on a subject, often an heir, the obligation to provide regular financial support to a designated beneficiary, for a defined period or even for the entire life of the latter.

This form of sustenance can be defined in the will with very precise criteria: one can establish the duration of the maintenance (for example, for a certain number of years or for the entire life of the beneficiary) and define from when to start payments, which can begin following a specific event or from an established date.

To be able to receive “alimony”, however, the beneficiaries must demonstrate that they are really in a state of need, considering both their habitual lifestyle and their current economic conditions. The sum of money provided periodically must be adequate both to their needs and to the economic capacities of the one obliged to pay it, without exceeding what is necessary to ensure a dignified standard of living, in line with their social position.

The amount destined to alimony varies according to circumstances and must ensure to the beneficiary what is fundamental for their sustenance, adapting over time to any changes in their needs.

If, for example, in a certain period the beneficiary is no longer in a state of need, the right to alimony can be suspended, to then possibly resume if needs were to present themselves again.

• Legacy for a person residing abroad. For foreigners residing in Italy, or for a person residing abroad, the legacy represents an ideal instrument to allocate assets located on Italian territory to family members residing abroad, avoiding the complexities of international division. Our law firm, specialised in assistance to foreigners in Italy, ensures complete and secure support for those who wish to transfer real estate or funds clearly and without risks.