Patrimonial segregation mortis causa in Italy

Among the most versatile and innovative instruments offered by our legal system, the trust occupies a position of relevance. Introduced in Italy with the ratification of the 1989 Hague Convention, the trust allows separating a determined set of assets from the general patrimony of the disponer, ensuring its management for a specific purpose or in the interest of one or more beneficiaries.

Originating from common law Countries, this institution has progressively adapted also to civil law systems, becoming an extremely useful means, especially in contexts that require an international approach or sophisticated patrimony management. Its application in Italian law represents an example of how our legal system has known how to welcome and integrate international legal instruments to respond to modern needs.

The trust is configured as a legal relationship in which the disponer (or settlor) transfers one or more assets to a trustee, who has the obligation to manage them according to the instructions received. A distinguishing characteristic of this institution is its segregative effect, which ensures that the assets in trust are separated from the personal patrimony both of the disponer and of the trustee. This peculiarity offers unique protection, preserving the assets from any aggressions by personal creditors of the disponer or of the trustee.

A fundamental element of the trust is its operational flexibility, which allows customising the instrument to adapt it to a vast range of situations. The trust can be used not only to manage complex patrimonies, but also to plan generational transitions or pursue specific objectives, proving extremely versatile.

The trust represents a particularly suitable solution for those who own assets in multiple Countries and wish to ensure management and distribution coherent with their wishes. For example, a Canadian citizen residing in Italy could use a trust to ensure that their real estate located in Italy is transferred to the children according to the laws of their Country of origin. This instrument, in fact, allows overcoming the limits imposed by Italian regulation, ensuring the application of foreign inheritance rules.

Also in the business area the trust proves to be an effective legal instrument. It can be used to protect patrimony from risks linked to economic activity, facilitate the generational transition of family businesses or also to pursue philanthropic purposes, such as the financing of charitable or cultural projects. Its capacity to adapt to such diversified purposes makes it a fundamental instrument in multiple contexts.

Various typologies of trust exist, each conceived to respond to specific needs. Family trusts, for example, are conceived to ensure the protection of assets and the management of patrimony within the family unit, while purpose trusts are used to achieve particular objectives, such as the management of a business or the realisation of specific projects. There are then philanthropic trusts, established to support charitable causes or initiatives of social interest.

Although this flexibility represents a great advantage, it is fundamental that the structure of the trust be carefully designed. Errors in constitution or management can entail the nullity of the trust itself or, in extreme cases, its qualification as a sham trust, that is to say a fictitious trust intended to evade the law or creditors. To avoid such risks, it is essential to turn to competent professionals with specific experience in the sector.

The creation of a trust requires in-depth knowledge of national and international regulations and legal competence that allows structuring it effectively and in compliance with the law. Errors in design, or in the definition of instructions for the trustee, can compromise the validity of the trust or limit its effectiveness. Boschetti Studio Legale carries out advisory activity for the constitution and management of trusts, ensuring tailor-made solutions for every need. Thanks to our team of professionals, we ensure correct implementation of this institution, protecting patrimony and respecting the wishes of the client. If you wish to deepen the potential of the trust or assess its application to your specific case, we are at your disposal for a direct and confidential discussion.

The patrimonial fund represents one of the most traditional and consolidated legal instruments for the protection of assets destined to the needs of the family. Provided for by article 167 of the Civil Code, it allows binding determined assets, such as properties, registered movable assets or credit instruments, to the satisfaction of family needs. The main characteristic of this institution is that the assets included in the fund cannot be used to settle debts that are not strictly connected to the needs of the family. This aspect makes it a privileged means to ensure concrete and lasting protection of patrimony.

The constitution of a patrimonial fund can take place in two distinct ways. On the one hand, it is possible to create the fund inter vivos, through a public deed drafted by a notary and signed by the spouses or by the interested subjects. On the other hand, the fund can be constituted mortis causa, through a will that disposes its creation after the death of the disponer. For example, a parent could decide to destine a property to the family of a child, imposing the constraint that such asset be used exclusively for housing needs. This flexibility makes the patrimonial fund a particularly useful instrument for situations in which one wishes to ensure continuous and targeted patrimonial protection.

One of the main advantages of the patrimonial fund lies in its capacity to protect the assets included, preventing them from being attacked by creditors for debts unrelated to the needs of the family. Furthermore, it offers the possibility of carefully selecting the assets to bind, thus adapting to the specific needs of those who constitute it. Thanks to its structure, the fund also ensures prolonged protection, ensuring that the assets maintain their destination to family purposes, regardless of any changes in the patrimonial or personal situation of the spouses.

However, the patrimonial fund presents some critical issues. Case law, over the years, has progressively expanded the concept of “family needs”, also including obligations that initially seemed extraneous to such needs, such as tax debts deriving from entrepreneurial activities. This extensive interpretation has rendered, in some cases, the assets of the fund vulnerable to aggression by creditors, reducing the protective effectiveness of the instrument. For this reason, it is essential to pay particular attention to the definition of the purposes and limits of the fund at the time of its constitution, so that no margins are created for ambiguous interpretations.

The correct constitution of a patrimonial fund requires accurate planning and a clear definition of objectives. Relying on expert legal advice is fundamental to avoid errors and to fully exploit the potential of this instrument. A specialised lawyer will be able to draft a clear and detailed act, suitable to ensure effective and lasting patrimonial protection.

Boschetti Studio Legale provides personalised assistance to guide its clients in the creation of patrimonial funds, identifying the solutions most suited to their needs. Thanks to our experience, we can help you to protect your patrimony and to best safeguard the interests of your family. For more information or for a preliminary consultation, do not hesitate to contact us. The safeguarding of your family patrimony begins with a conscious and well-pondered choice.