Many think they can handle the succession on their own, or with the sole help of the CAF. When the inheritance is simple, a single property, heirs in agreement, no debts, this is the case. The problem is that most successions are not simple, and those who realise it late pay the highest price.
An inheritance with debts accepted without beneficio d’inventario. A challengeable will whose deadlines expire without anyone intervening. A division between heirs that is blocked for years. These are mistakes that cannot be recovered, and that a specialised lawyer would have avoided.
This page does not explain what the succession is. It explains when the succession becomes complicated, and what you risk if you face the complexity without legal assistance.
The 7 situations in which the lawyer is indispensable
Not all successions require a lawyer. But these seven do, and in each one the cost of not having legal assistance far exceeds the cost of advice.
- Heirs in disagreement (challenging the will). When the heirs do not agree on the content of the will or on the apportionment of assets, the succession can become blocked. CAF, notaries and accountants can take care of formal formalities, but they do not resolve a conflict between heirs: a lawyer is needed who assesses the positions, attempts a settlement and, if necessary, starts litigation. The most frequent contestations concern the validity of the will: authenticity of the writing, capacity of the testator at the time of drafting, any pressures or deceptions. These are matters that require expert appraisals, witness testimony and a procedural strategy. Until the conflict is managed, the availability of the assets may de facto remain frozen.
- Real estate or heirs abroad (succession with international elements). When the deceased had assets in several countries or when the heirs reside in different States, the succession takes on an international dimension. Regolamento UE n. 650/2012 applies: in general, save for the so-called professio iuris, the applicable law is that of the deceased’s last habitual residence, but for certain aspects (especially real estate or fiscal ones) the rules of the country in which the assets are located may also be relevant. Studio Boschetti handles successions with elements in Italy, the United States, the United Kingdom and Switzerland. Each legal system has its own rules on inheritance shares, taxes and recognition of acts. An incorrect setting of the applicable law or of the recognition procedure can generate disputes, double taxation or difficulties in enforcing abroad acts formed in Italy.
- Inherited debts exceeding the assets. The inheritance also includes debts. Those who accept the inheritance purely and simply are liable for the deceased’s debts also with their own personal assets. It is one of the most insidious critical aspects of succession, because debts can also emerge after acceptance. The lawyer verifies the debt situation before the heir takes decisions. If there are significant liabilities, they can prepare an acceptance with beneficio d’inventario (which limits liability to the value of the assets received) or assess renunciation. Attention must also be paid to behaviours that may amount to tacit acceptance, such as disposing of the deceased’s assets or using their accounts: once acceptance has occurred, renunciation is no longer possible.
- Will impairing the reserved share. Italian law reserves a share of the estate for the legitimate heirs (spouse, children and, in the absence of children, ascendants) whom the testator cannot exclude. If the will attributes to third parties assets exceeding the disposable share, the legitimate heirs can act with the azione di riduzione to restore their rights. The azione di riduzione is prescribed in ten years from the opening of the succession, but verifying the impairment requires accurate patrimonial reconstruction: assessment of assets, consideration of donations made during life, determination of the disposable share. Mistakes in calculation or proof can compromise the outcome of the action. The lawyer quantifies the impairment, assesses the strategy and handles the litigation or the negotiation.
- Family business succession. When the inheritance includes company shareholdings, the management of the generational handover requires specific tools (family agreements, holding structures, donations). A lawyer experienced in inheritance and corporate matters can prevent decision-making blocks, family conflicts and loss of value of the business.
- Heir under support administration. When the heir is under amministrazione di sostegno, the lawyer handles the authorisations of the giudice tutelare and protects the rights of the beneficiary.
- Tax disputes related to the succession. Inheritance tax, the assessment of the value of the assets, contestations by the Agenzia delle Entrate: these are matters that require fiscal and procedural competence. The lawyer manages the dispute and the protection of the heir’s rights.
The concrete risks of do-it-yourself
Do-it-yourself succession is not a saving. It is a calculable risk, and the figures are clear.
Accepting the inheritance without beneficio d’inventario. The heir who accepts the inheritance purely and simply is liable for the deceased’s debts also with their own personal assets. If contingent liabilities later emerge (tax debts being assessed, sureties, pending litigation), the heir is liable in full. Acceptance with beneficio d’inventario limits liability to the value of the assets received, but must be made within precise time limits and with formalities that the CAF does not handle.
Failure to challenge the will within the time limits. The azione di riduzione for impairment of the reserved share is prescribed in 10 years from the opening of the succession. Different is the case of annulment of the will for incapacity of the testator or for defects of will (error, fraud, violence): in these cases the term is 5 years, which run from the execution of the testamentary dispositions. If, instead, the will presents serious formal defects that entail nullity (for example absence of essential requirements of the holographic), the action of nullity is not subject to a short term of prescription, but can be paralysed by the passage of time through usucaption of the assets. Relying on informal negotiations or postponing a technical assessment may entail the definitive loss of the right to challenge.
Underestimating inherited debts. The deceased’s liabilities are not always immediately evident. Sureties, personal guarantees, tax debts being assessed or pending litigation can also emerge after the opening of the succession. If the inheritance has already been accepted without precautions, it is no longer possible to renounce. The lawyer verifies the debt position before the heir takes irreversible decisions and assesses the safest solutions (beneficio d’inventario or renunciation).
What the lawyer does that the CAF cannot do
The CAF compiles the inheritance declaration. It is a fiscal formality. The lawyer does everything else.
Assesses the situation before acceptance. Verifies debts, latent liabilities, open fiscal positions. Decides with the heir whether to accept, accept with beneficio d’inventario or renounce. The CAF does not do this: it records a choice already made, without assessing the consequences.
Manages conflicts between heirs. When the heirs do not agree, the CAF cannot intervene. The lawyer negotiates, proposes solutions, and if necessary starts litigation to protect the right of their client.
Challenges the will. If the will impairs the reserved share or presents defects, the lawyer brings the azione di riduzione or of annulment within the time limits. The CAF has neither competence nor tools to do so.
Manages international succession. When there are assets or heirs abroad, skills in private international law, knowledge of bilateral conventions and ability to coordinate procedures in several jurisdictions are needed. The CAF operates only in Italy and substantially only on the fiscal aspect.
Protects fragile heirs. When the heir is under amministrazione di sostegno, the lawyer manages the authorisations of the giudice tutelare and protects the rights of the beneficiary
Whom to turn to for the succession?
For the fiscal inheritance declaration one turns to the CAF or to the accountant. When there are contestations between heirs, assets abroad, debts, wills to be challenged or complex situations, a lawyer specialised in succession law is needed. The notary intervenes for the deeds of real estate transfer.
The choice depends on the complexity: if the heirs are in agreement and the estate is simple, the CAF is enough. If there is even one element of complexity among those listed on this page, the lawyer is the figure of reference.
How much does a lawyer cost for the succession?
The cost varies depending on the complexity of the case. A preventive consultation to assess the inheritance situation has a contained cost. Assistance for the entire succession, from the verification of debts to the division of assets, depends on the number of heirs, on the presence of assets abroad and on any litigation.
The cost must always be compared with the risk: accepting an inheritance with hidden debts or losing the time limits for challenging a will costs much more than any legal fee.
Is it worth challenging a will?
It depends on the extent of the impairment and on the merits of the action. If the reserved share has been impaired in a significant way and the impairment can be documented, the azione di riduzione has good probabilities of success. The judge has no discretion on the reserved share: if the impairment exists, the heir has the right to reinstatement.
The lawyer assesses the merits before starting the case, estimating timeframes (2-5 years at first instance), costs and probabilities of outcome. Starting litigation without this preliminary assessment is a mistake.
Does the succession lapse?
The right to accept the inheritance is prescribed in 10 years from the opening of the succession. The azione di riduzione for impairment of the reserved share is prescribed in 10 years. The action for annulment of the will for incapacity or defects of will is prescribed in 5 years.
Each action has its own time limit and its running can be interrupted or suspended in certain circumstances. Losing a time limit means losing a right: it is one of the reasons why legal advice should be requested immediately, not when the problem has already become urgent.
Can the succession be done after 10 years?
After 10 years from the opening of the succession, the right to accept the inheritance is prescribed: those who have not accepted within that term, as a rule, lose the possibility of becoming heirs. Note however: acceptance may already have been perfected even without a formal act, when the person called performs acts that presuppose the will to accept (for example disposing of inherited assets or using them as their own). Not every behaviour is automatically “tacit acceptance”, but some conduct, such as withdrawing sums from the deceased’s accounts or managing the inherited assets without precaution, can expose to this risk. On the fiscal level, instead, the inheritance declaration had to be filed within 12 months of death, but it can also be filed later, with penalties and interest. In short: the civil profile (acceptance/renunciation and consequences on the assets) and the fiscal profile (declaration and taxes) follow different rules. The lawyer is needed precisely to clarify whether the inheritance is still acceptable, whether there have been acts of tacit acceptance and how to correctly regularise the formalities.
