Division of the inheritance community in Italy

Before speaking of how to dissolve an inheritance community, it is useful to take a step back to answer this question: “what exactly is the inheritance community?”.

The inheritance community is a legal situation that is established when two or more persons inherit together a portion of a patrimony, thus becoming co-owners. This patrimony can include real estate, bank accounts, investments and other assets.

Until the inherited patrimony is formally divided through an agreement among the heirs or a sentence, each heir remains in inheritance community, sharing rights on every single part of the patrimony, regardless of the individual share of each.

In the inheritance community, each heir has the right to participate in the management of the common assets.

However, in practice, often one or more heirs are delegated for the management or one resorts to an external administrator.

Boschetti Studio Legale assists clients in this phase to ensure effective and harmonious management, minimising potential conflicts.

Judicial division is the most expensive and complex, often chosen only as a last resort after the failure of mandatory mediation. Being a long proceeding, it can last several years and entails additional costs for the assessment of assets and the support of a technical advisor. Overall, costs can easily exceed tens of thousands of euros, making this option preferable only when there are no alternatives.

The judicial request for division must be preceded by mandatory civil mediation, as established by the regulation. Inheritance division through judicial action is a right reserved to co-heirs, who can choose to exit the inheritance community when they consider it appropriate.

The testator can, however, prohibit inheritance division for a maximum period of five years from their death or until one year after the youngest heir has reached the age of majority.

Here too, the rules of distribution provide that the assets be distributed in a balanced way.

In case the inheritance includes real estate not easily divisible, one or more heirs may request joint assignment. In such situations, there is a tendency to include such properties entirely in the share of the heir entitled to the larger part. Monetary compensation is also ensured for the heir who receives assets of lower value compared to the others.

The division carried out by the testator is regulated by the Codice civile.

It is not a division established with a contract, but a provision contained in the will, through which the testator avoids the formation of an inheritance community, assigning specific assets to designated heirs. This type of division is subject to rather strict rules: it can be declared void if there is omission of one of the heirs, or it can be annulled should patrimonial damage exceeding one quarter of the value occur.

Notarial division, finally, is an agreement in which the heirs, whether designated by will or by law, choose to distribute the inherited properties to dissolve the co-ownership on the assets. This type of agreement is realised with the assistance of a notary, who ensures the correctness and legality of the process, drafting a formal deed that officialises the division. When the portions cannot exactly correspond to the shares of the heirs, as provided for by law, these differences are compensated with monetary balances to balance the value of each assignment. An example is the case of two heirs who divide a patrimony of 150 composed of a property of 50 and one of 100: the heir who receives the asset of 50 obtains a balance of 25 from the other to equalise the shares.

If an heir intends to sell their part, the others have the right of pre-emption, that is to say the possibility of acquiring it under the same conditions; this right, provided for by law, allows the other co-heirs to redeem the sold share, while the inheritance community is active, through the “succession redemption”.

This right applies exclusively to inheritance divisions. Before the distribution, the heirs, except for dispensation, must contribute to the inheritance community the indirect donations received during life, considered an advance on the succession.

Collation by imputation applies to donations made with the intent to anticipate the succession and must be carried out by the heirs who have received them to ensure an equitable division.

However, it is possible that the heirs renounce such collation by agreement, operating a voluntary collation, which allows preserving the value of the donations without altering the inheritance shares.

Finally, the formation of inheritance shares provides that each portion assigned be composed homogeneously, with movable assets, real estate and credits in proportion to the share of each, although it is possible, with unanimous agreement, to assign the assets differently.

In light of the considerations made, it is important to clarify what the “phases” of the proceeding for dissolution of the inheritance community are. Some phases might be necessary only in some cases.

1. Attempt at agreement among heirs:

The first phase consists of verifying the possibility of dissolving the inheritance community with an agreement. In this phase, generally, only the heirs are involved.

Boschetti Studio Legale actively supports this phase, offering targeted advice to favour a peaceful and consensual resolution of the dispute.

2. Assessment of the common assets: If an agreement is possible, it is advisable to carry out an assessment of the assets involved, relying on experts (architects, engineers, etc.) to ensure an equitable and accurate evaluation. Boschetti Studio Legale can coordinate the collaboration with experts and specialised technicians for a professional and transparent assessment of the assets.
3. Proposal of inheritance division: Once the assessment is completed, a proposal of division is formulated. In complex cases, it is useful to be assisted by experienced lawyers. The proposal can provide for monetary balances and agreements on the payment of any debts. Boschetti Studio Legale elaborates and structures personalised division proposals, also managing the most complicated aspects such as urban planning questions or authenticity of works of art.
4. Drafting of the deed of division: Once the agreement is obtained, one proceeds with the signing of the deed of division before a notary, where each co-heir receives their part in exclusive ownership.

All co-owners must be present for the deed to be legally valid.

Boschetti Studio Legale provides comprehensive legal assistance, ensuring that every procedural step is executed flawlessly to pre-empt and mitigate any potential future disputes.

5. Judicial Proceedings in the Absence of an Agreement:

Should the parties fail to reach an amicable settlement, recourse may be sought through the courts by initiating judicial division proceedings—undoubtedly the longest and most expensive resolution path. Throughout the litigation, each heir is entitled to submit evidence, after which the judge will draft a division proposal which, if not contested, shall become enforceable. In the event that the assets are indivisible, the court may order their sale and the subsequent distribution of the proceeds.

Boschetti Studio Legale supports clients through every stage of the judicial process, steadfastly safeguarding their interests and assisting them in achieving the most advantageous outcome possible.”