Particular phenomena of succession in Italy
In inheritance law, peculiar phenomena are encountered that regulate the transfer of a person’s patrimony at the moment of their death, offering articulated solutions to complex situations. Among these, accrual stands out for its automatic character: when an heir or legatee renounces or cannot accept their share, it is redistributed among the other co-heirs or co-legatees, ensuring balance in succession, save for testamentary provisions to the contrary. The transmission of inheritance, instead, focuses on the identification of successors, without modifying the shares of distribution, and can take place by will or by law.
Other mechanisms, such as representation and substitution, further enrich the framework. Representation allows the descendants of a predeceased, unworthy or renouncing heir to take over their position, preserving family continuity. Substitution, instead, allows the testator to indicate an alternative heir, offering a preventive solution to ensure respect for their will. These instruments intertwine, contributing to flexible management of patrimony and to safeguarding family continuity, in compliance with the law and with the testamentary will.
Boschetti Studio Legale, specialised in inheritance law, offers highly qualified support to address every aspect of inheritance management, ensuring personalised solutions and protecting the rights of its clients with competence and experience.
- Succession
- Declaration of succession
- Inheritance succession
- Legitimate succession
- Testamentary succession
- International succession
- Succession planning
- Business succession
- Generational transition of the business
- Family pacts
- Patrimonial planning
- Inheritance pacts
- Inheritance retraction
- Patrimonial segregation mortis causa
- Particular phenomena of succession
Transmission of Succession
In the complex area of inheritance law, the transmission of the right to accept the inheritance represents a fundamental mechanism that is activated when the called heir dies before having expressed their will to accept or renounce. This institution allows their heirs to take over the position of the original called heir, allowing them to decide whether or not to accept the inheritance that had been devolved to their predecessor in title. It is a crucial aspect to ensure continuity in the transmission of family patrimony, even in unforeseen situations.
This right is transmitted to the heirs of the called heir, who will find themselves in the condition of having to decide whether or not to accept the inheritance that had been offered to their predecessor in title. Unlike representation, where the descendants take over directly the position of the ascendant, here it is a true and proper transfer of the right to accept. Boschetti Studio Legale, with its experience in international inheritance law, underlines how this distinction is crucial for the correct management of inheritance dynamics and to avoid possible complications.
It is important to note that the transmission of the right to accept the inheritance is placed above representation and accrual. This means that, where transmission occurs, the other institutions do not find application, with the exception of testamentary substitution, on whose prevalence there is no unanimous consensus. The complexity of this interaction between the different inheritance institutions makes evident the importance of qualified legal advice.
The transmission of the right to accept the inheritance is a mechanism that operates differently compared to accrual. While accrual entails an automatic expansion of the inheritance share among the co-heirs when one of them cannot or does not wish to accept, transmission focuses on the right to decide whether to accept the inheritance devolved to the called heir. These two mechanisms, although different, both aim to ensure continuity in succession.
The transmission of the right to accept the inheritance is not to be confused with the transmission of ownership of the inheritance assets. This last takes place only at the moment in which the heir has accepted the inheritance. Therefore, the transmission of the right to accept is a fundamental intermediate passage in the inheritance process, which requires careful assessment to fully understand the inheritance dynamics.
In summary, the transmission of the right to accept the inheritance is a complex institution that requires in-depth knowledge of inheritance law. Boschetti Studio Legale, thanks to its specialisation in family law and international successions, is able to offer qualified legal assistance to protect your interests and ensure correct application of the law. If you need advice or assistance in inheritance matters, do not hesitate to contact our firm for an assessment of your case.
Representation of Succession
In the complex system of inheritance law, representation is a fundamental legal institution that allows the descendants of a subject, who cannot or does not wish to accept an inheritance or a legacy, to take over the position of their ascendant. This mechanism is activated both in legitimate successions, regulated by law, and in testamentary ones, where the provisions of the testator are taken into account. The ratio of this institution is to ensure that the inheritance remains within the family branch of the deceased, respecting the principle of family continuity.
Representation, therefore, is configured as an exception to the general principle according to which only the called heir can accept the inheritance. Thanks to this institution, the descendants, defined as “representatives”, take the place of theirs. Representation is therefore a useful instrument to protect the expectations of family members, especially when the original called heir is unable to succeed.
The situations that can give rise to representation are various, including predecease of the called heir (that is, their death before the de cuius), the renunciation of the inheritance or in cases of unworthiness to succeed.
It is important to underline that representation operates automatically, without the need for further acceptance by the representatives. However, in order for this mechanism to apply, it is necessary that the original called heir be a child or brother/sister of the de cuius.
Representation prevails over accrual but not over testamentary substitution, configuring itself as a supplementary institution with respect to the will of the testator. This means that, if the testator has provided for a substitution, this will have priority over representation. In the absence of a substitution, representation operates automatically, ensuring that the inheritance is devolved according to the family lines of the de cuius. Representation is an instrument that ensures correct distribution of the inheritance, avoiding that the share of a predeceased or renouncing heir be lost or devolved to other undesired subjects.
In summary, representation is a complex but fundamental institution in inheritance law, which ensures continuity in the transmission of family patrimony. One of the central aspects of this institution concerns the subjective constitutive elements of representation, which identify the subjects involved: the represented, who is the original called heir, and the representatives, who take over their position. Such subjects must belong to the family branch of the de cuius, thus ensuring respect for the inheritance line. The objective constitutive elements of representation refer instead to the inheritance share due and to the condition for which the original called heir is predeceased, renouncing or unworthy to succeed. It is essential that the relationship of kinship be such as to allow the direct subentry of the representative in the legal position of the represented.
The right of representation operates as an automatic mechanism that allows the descendants of the original called heir to acquire the inheritance rights that would have been due to the latter, ensuring correct transmission of patrimony within the family unit.
When speaking of succession by representation, reference is made to the situation in which a subject, prevented from succeeding, sees their descendants take over the inheritance position that would have been due to them, ensuring continuity in the transfer of assets and rights of the de cuius. The heir by representation not only acquires the rights and obligations of the represented ascendant, but is configured as a subject designated by law to ensure that succession follows a natural family order respectful of the continuity of patrimony.
Boschetti Studio Legale, with its specialisation in family law and international successions, is able to provide qualified legal assistance to guide you through the complex inheritance dynamics, ensuring that your rights are protected in compliance with the law and with the will of the de cuius. If you need advice or assistance in inheritance matters, do not hesitate to contact our firm for an assessment of your case.
Accrual in Legitimate and Testamentary Succession
The accrual of the inheritance share is a legal mechanism that manifests itself when the share of an heir or legatee, who cannot or does not wish to accept their part of inheritance, automatically expands in favour of the other co-heirs or co-legatees. This institution, provided for by the civil code, aims to ensure continuity of succession, avoiding that the vacant share end up being redistributed according to the rules of legitimate succession, unless the testator has disposed otherwise. The accrual of inheritance therefore represents a valid instrument to simplify inheritance dynamics, especially in the presence of multiple called heirs.
In the area of testamentary succession, accrual occurs when multiple heirs are instituted in the same will, without specific determination of their shares or in equal parts. If one of these heirs cannot or does not wish to accept their share, it is distributed proportionally among the others. Similarly, in legacies, accrual operates among the co-legatees, provided that the testator has not expressed a contrary will. An important aspect to underline is that accrual takes place ipso iure, that is automatically, without specific acceptance by the beneficiaries being necessary. It is an automatic expansion of the share already acquired.
In legitimate succession, accrual takes on a slightly different connotation. In this context, the term “accrual” refers to the redistribution of shares among those who would have shared with the renouncer. This occurs when one of the legitimate heirs renounces the inheritance, their share is divided among the other heirs of the same degree, as established by article 522 of the civil code. Unlike testamentary succession, in legitimate succession the share of the renouncer is considered as never called and a recalculation of the inheritance shares operates.
It is important to note that accrual is a residual institution, that operates only in the absence of other inheritance mechanisms, such as substitution and inheritance representation. Testamentary substitution, in fact, allows the testator to designate a substitute should the first called heir not be able or wish to accept. Representation, instead, allows the descendants to take over the position of the ascendant who cannot or does not wish to accept the inheritance. In summary, accrual is a mechanism that aims to ensure continuity and coherence in successions, both testamentary and legitimate.
Boschetti Studio Legale, thanks to its specialisation in family law and international successions, is able to offer qualified legal assistance to guide you through the various cases of inheritance law, protecting your interests and ensuring correct application of the law. If you need advice or assistance in inheritance matters, do not hesitate to contact our firm for an assessment of your case.
Typical scenarios / Case studies
The typical scenarios have been developed by combining the most significant family law situations that our firm regularly handles, creating structured and realistic examples designed to help readers better understand and navigate their own legal matters. The case studies, on the other hand, are based on real cases handled by our firm, with all personal data and identifying details anonymised to protect client confidentiality.
Registering a cohabitation agreement and regularising the status of a foreign partner
A couple living in Rome, consisting of an Italian citizen and his foreign partner without valid residence documents, sought legal protection for their relationship. An urgent application under Article 700 of the Italian Code of Civil Procedure was filed to safeguard their cohabitation, followed by proceedings to obtain an EU family member residence card.
Adult adoption to legally recognise a de facto family relationship
A United States citizen living in Rome sought to formalise a long standing family relationship with his uncle by marriage through adult adoption. Proceedings were brought under Articles 291 et seq. of the Italian Civil Code to obtain legal recognition of their established family bond.
Cohabitation agreement for an Italian Brazilian couple: protecting assets and securing residence rights
An Italian entrepreneur and his Brazilian partner had been living together in Milan for three years. Their situation involved three interconnected legal vulnerabilities relating to immigration, asset protection and succession planning, all addressed through a coordinated legal strategy.
Adoption in Colombia: an Italian couple fulfils their dream after a three year journey
A couple married for eight years embarked on an international adoption in Colombia. The procedure involved two legal systems, three Italian institutions and the Colombian Central Authority, requiring careful coordination throughout every stage of the process.
Succession involving heirs in four different countries: coordinated management across Italy, the United States, the United Kingdom and Switzerland
An Italian entrepreneur left assets located in Italy, the United States and Switzerland, with four heirs residing in four different countries. The matter required the parallel coordination of four legal systems and four tax regimes.
Adult adoption of a partner’s child: legal recognition of a twenty year family bond
A fifty eight year old man seeks to adopt his wife’s thirty year old son, whom he has helped raise for twenty years. Although the relationship was genuine and long established, it had no formal legal recognition, with significant implications for the biological children’s inheritance rights.
Challenging a will for infringement of forced heirship rights: €800,000 recovered for the heirs
Two children inherited only €20,000 each under a will that left almost the entire estate to their late father’s second wife. An action to enforce their forced heirship rights was successfully resolved through mediation.
Succession planning for a family business: transferring a €3 million business to the next generation
A sixty two year old entrepreneur needed to transfer ownership of a company employing fifty people to the son who had been managing the business, while safeguarding the interests of his daughter, who had chosen a different career path. A family agreement and a holding structure ensured business continuity and long term stability.
International adoption by a single parent: when the law opens a path few people know exists
A forty five year old single woman embarked on an international adoption. Although legally possible, this route remains little known and requires a carefully planned legal strategy from the very first stage, beginning with the application for the certificate of suitability.
Digital inheritance: recovering cryptocurrencies and digital assets after death
A professional passed away leaving more than €600,000 in cryptocurrencies held across multiple wallets and exchanges, without providing any access instructions. A substantial digital estate was at risk of being lost forever.
Legal name change for a transgender person: aligning official documents with gender identity
A thirty two year old professional, who had been undergoing hormone therapy for eight years, still had official documents bearing the male name assigned at birth. This discrepancy repeatedly forced unwanted disclosure of her gender identity in professional, banking and administrative settings.
Legal gender recognition and the update of more than 20 official documents: from court judgment to a new legal identity
A forty five year old executive had already obtained a court order granting legal gender recognition but was then faced with the real challenge: coordinating the update of an identity card, driving licence, university degree, employment records, mortgage documentation and insurance policies across multiple authorities, each with different procedures.
Legal Advice for the Particular Phenomena of Succession (Transmission, Representation, Accrual)
Inheritance law, with its complex dynamics, is enriched with further challenges when elements of internationality come into play. The management of cross-border inheritance patrimonies requires in-depth knowledge of Italian and international laws, as well as of the conventions that regulate these matters. Boschetti Studio Legale, with its consolidated experience in family law and international successions, provides specialist advice to address the peculiarities linked to transmission, representation and accrual in successions involving foreign citizens.
The transmission of the right to accept the inheritance is an institution that comes into play when the called heir dies without having expressed their will to accept or renounce. In these cases, the right to accept transfers to their heirs, who will have to assess whether to accept the inheritance of the first de cuius (the original deceased) and, consequently, also that of their predecessor in title (the deceased called heir). This mechanism can prove particularly intricate in international contexts, where applicable laws may vary and coordination between the various jurisdictions is essential.
Representation, as we have seen previously, is an institution that allows the descendants of a subject who cannot or does not wish to accept an inheritance to take over the position of their ascendant. This mechanism is particularly useful to ensure that the inheritance remains within the family branch of the deceased, and is fundamental in international successions due to the various regulations. This aspect is crucial when the heirs find themselves in different countries, since laws on succession and representation may vary significantly from one jurisdiction to another.
Accrual, finally, is a mechanism that allows expansion of the inheritance shares of the other co-holders when one of them cannot or does not wish to accept their part of inheritance. This principle applies both in testamentary and legitimate successions. At international level, accrual can raise complex issues, especially when the inheritance assets are located in different countries and are subject to different inheritance laws.
It is fundamental to consider that the mechanisms of transmission, representation and accrual can interact with each other in a complex manner, especially in the presence of elements of internationality. The rules of private international law, in fact, define which law applies to succession based on various criteria (e.g. citizenship, residence, location of assets), and it is necessary to carefully assess every single aspect to ensure correct devolution of the inheritance patrimony.
Also for foreign citizens who find themselves facing a succession in Italy, or for Italian citizens residing abroad, it is indispensable to receive specialist legal advice that takes into account the specifics of their case. Above all, the management of successions with elements of internationality requires in-depth knowledge of regulations and accurate analysis of every single case.
Boschetti Studio Legale, thanks to its competence in international inheritance law, is able to offer complete and qualified legal assistance, ensuring the protection of your rights and correct application of the law. If you need a lawyer to manage your case in matters of international succession, do not hesitate to contact our law firm for an assessment of your case.
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Where is it best to do succession practices?
Succession practices must be carried out at a notary or at the Inland Revenue Agency competent for territory, where the deceased had their last residence. The notary is useful for more complex practices, while for simpler ones it is possible to proceed autonomously with self-certification. It is essential to consult legal or fiscal experts to avoid errors and ensure that the practice complies with the regulation in force.
How does accrual operate?
Accrual operates when one of the co-heirs or legatees renounces or cannot accept the inheritance share. In this case, the vacant share is distributed among the other co-heirs or legatees, according to the proportions established by the will or by law. The right of accrual applies only if the share is not differently attributed or reserved to other beneficiaries.
How does succession by representation work?
Succession by representation allows the descendants of a predeceased or renouncing heir to take over their place in the inheritance. For example, the children of a deceased heir inherit the share due to the parent. This principle applies only to legitimate or natural descendants and serves to preserve family rights in the direct line of succession.
When does inheritance representation not operate?
Inheritance representation does not operate when the designated heir is still living, accepts the inheritance or renounces without leaving descendants. Furthermore, it does not apply in legacies or when the testator has expressly provided for different provisions. It is fundamental that there be descendants suitable to take over for the mechanism to be able to function.
What does right of accrual mean?
The right of accrual is an inheritance principle according to which the share of a co-heir or legatee, who renounces or cannot accept, is distributed among the other co-heirs or legatees. This right applies only if there is an inheritance community and there are no contrary provisions in the will. Accrual ensures fair distribution of patrimony among the residual heirs.
Succession with heirs in different countries: which law applies and where is the succession opened?
Succession opens at the place of last habitual residence of the deceased and the law of that state applies, save for different choice expressed in the will (so-called professio iuris). Regolamento UE 650/2012 establishes this. An Italian residing in Germany, without a choice clause, will have a succession regulated by German law.
In cross-border successions, the civil discipline (e.g. acceptance, renunciation, shares and devolution) is regulated by the lex successionis identified by the rules of private international law (in the EU area, as a rule the law of the last habitual residence of the de cuius). Taxes, instead, remain regulated by the regulations of individual States, often making careful coordination necessary.
For real estate the law of the place where they are located may apply. The European Certificate of Succession facilitates recognition in the EU area, but must be requested with specific procedure.
Inheritance with debts exceeding the assets: what to do? Acceptance with benefit of inventory or waiver?
The heir has two options: accept with benefit of inventory, responding for debts only within the limits of the value of the assets received, or renounce the inheritance, losing all rights over the assets but also all responsibility for debts. The choice must be made with the assistance of a lawyer, because the terms are peremptory.
Acceptance with benefit of inventory requires a formal declaration (before a notary or Court) and the drafting of the inventory within the legal terms. In some cases, especially if the called heir is in possession of the inheritance assets, the inventory must be drafted within three months.
Renunciation of inheritance can be effected within ten years from the opening of succession, provided that acceptance has not already taken place.
It is important to pay attention: carrying out acts that presuppose the will to accept the inheritance, such as withdrawing money from the accounts of the deceased or disposing of their assets, may integrate tacit acceptance and prevent a subsequent renunciation.
Contested will: how long does the lawsuit last? The timing, costs, and probability of outcome?
A case for challenging a will lasts on average from 2 to 5 years in first instance. The outcome depends on the reason: the action for reduction for infringement of the reserved share has good probabilities when the infringement is documentable, the challenge for incapacity of the testator is more complex and requires medical-legal appraisals.
Costs include unified contribution, legal expenses and appraisals (CTU). In case of losing, the expenses of the counterparty are also paid. The lawyer is indispensable to assess the validity of the action before starting the case.
Trust and Italian succession: when is it compatible and when is it contested?
The trust is compatible with the Italian inheritance legal system provided it does not violate mandatory rules and, in particular, the rights of the forced heirs (spouse, children and, in some cases, ascendants).
It can be the subject of dispute when the conferment of assets in trust affects in a prejudicial manner the reserved share due to the necessary heirs or when, in concrete, the disponer maintains substantial control over the assets such as to make the trust be considered merely simulated or interposed.
Italy recognises the institution of trust by virtue of the 1985 Hague Convention, ratified with legge n. 364/1989. However, the trust cannot be used to evade the internal inheritance discipline: if the attributions in trust infringe the rights of the forced heirs, these latter can act in court through an action for reduction to obtain the reintegration of their share.
In the presence of a trust deemed merely interposed or simulated, the judge can disapply its effects and bring the assets back into the inheritance asset for the purposes of protection of the forced heirs.
Family business in succession: family pact or will? Which protects more?
The family pact is the instrument provided for by the civil code to favour the generational transition of the business or of company shares. It allows the immediate transfer of the business to one or more descendants with the consent of all the forced heirs, who are paid off or participate in the agreement.
The attributions effected with the family pact, if correctly structured, are not subject to the ordinary actions of reduction and collation at the time of the future succession of the disponer, ensuring greater stability in business continuity.
The will, instead, offers greater flexibility but produces effects only at the death of the holder and may expose the business to disputes between heirs, with the risk of inheritance community and of actions of reduction by the forced heirs.
The choice between the two instruments depends on the family arrangement and on the degree of sharing among the heirs: if it is possible to reach a consensus among all the forced heirs, the family pact generally represents the most stable solution for business continuity. In the absence of such consensus, it is often appropriate to resort to more articulated planning, which can include a will, donations, insurance instruments or other compensatory mechanisms in favour of the other forced heirs.
