Consensual inheritance division in Italy
When a person dies and the inheritance is distributed among multiple individuals, who accept it, an inheritance community is created. In this context, the heirs become “co-heirs”, sharing ownership of the inheritance patrimony.
The inheritance community concerns all the assets that belonged to the deceased, except those specifically assigned to other subjects through legacies.
The community is dissolved through the division of the inheritance, which entails the distribution of the assets among the heirs based on the respective shares. Each heir becomes exclusive owner of the assets assigned to them.
The inheritance division can take place in three ways:
- By will of the deceased, through a will.
- Through a judicial procedure.
- Through an agreement among all the co-heirs, formalised with a “divisional contract”.
Anyone among the co-heirs has the right to request the dissolution of the community, which can be done at any time, except for any temporal restrictions imposed by the deceased, such as the prohibition of division until the youngest of the heirs reaches a certain age or within a maximum limit of five years from death.
The Tribunale can authorise a reduction of such terms, on request of a co-heir, if there is a risk of a decrease in the value of the patrimony in the meantime.
Boschetti Studio Legale ensures validity to your division contract. For the inheritance division contract to be valid, including the case of consensual inheritance division for a foreign citizen in Italy, all co-heirs must participate and agree on the modalities of division of the assets. If among the co-heirs there are incapable subjects, they must be represented or assisted, and the agreement must be approved by the judge.
Creditors or those who have acquired rights from a co-heir can participate with control functions and, if they consider that the division is not correct, have the faculty to oppose.
- Inheritance
- Acceptance of the inheritance
- Actions to protect the inheritance
- Renunciation of the inheritance
- Inheritance collation
- Consensual inheritance division
- Judicial inheritance division
- Acceptance of inheritance with benefit of inventory
- Inheritance representation
- Inheritance shares with and without a will
- Inheritance and donation
- Inheritance to grandchildren
- Digital inheritance
- Petition for inheritance
- Division of the inheritance community
- Lying inheritance
- Inheritance for de facto couples
How are the shares formed? The process of distribution of the assets takes place in various phases.
The inheritance division is the process through which the heirs divide among themselves the inheritance compendium left to them by the deceased. This can include money, real estate, movable assets, business or company shares, stocks, bonds and other rights.
As already mentioned, in Italy the division can take place with the consent of all the heirs or, in case of disagreement, through the intervention of the judge.
In the first case, the heirs spontaneously agree on the distribution of the patrimony through the stipulation of a real division contract within which the distribution of every asset will be regulated. Such agreement stipulated between the parties can take place in the presence of a notary or a lawyer experienced in inheritance law.
On the contrary, in case of contentious inheritance division, it will be necessary to apply to the Tribunale. In such case it will be the judge to establish the future distribution based on expert opinions and other assessments.
Turning to Boschetti Studio Legale for inheritance division is advisable in both modalities, especially when assets of value are involved or the legal situation is complex, as in the case of heirs of foreign nationality. This is particularly true when the succession includes real estate or other assets of relevant economic value, or when it is necessary to investigate any donations made by the de cuius, situations these that require maximum attention from your trusted legal professional.
The contractual or voluntary inheritance division
The amicable inheritance division that takes place through contract is certainly the simplest and most immediate solution, provided that there is peaceful agreement among all the heirs on the distribution of the assets that are its object.
The division contract is that by virtue of which the participants in the community decide to dissolve it through reciprocal assignments from the mass.
The dissolution of the community entails the assignment to each of the participants of a part of the common thing, to be calculated proportionally to the participation of each. It follows that, once the division has been carried out, each participant becomes exclusive owner of a part of the common thing, now divided.
Wishing to frame the division contract under a legal category, it is understood as a contract with corresponding performances: there is in fact a relationship of reciprocal dependence between the shares attributed to each co-divider. According to recent case law it would also be a deed of constitutive nature: the right of each co-holder to the portion of the common thing arises with the division, it was not pre-existing to it. Vice versa, traditional doctrine attributes to the division contract mere declarative nature, close to the deed of ascertainment.
The advantage of this modality of division is evident: it allows avoiding the costs and lengths of a judicial proceeding, while preserving the relationships among heirs.
It is important that the division contract be clear and binding, especially when there are real estate or assets that require formal deeds for their correct transfer.
The role of the lawyer is crucial in this phase, turning to a sector expert will ensure that the agreement respects all legal rules, avoiding future contestations.
It is also specified the eventuality, very frequent in practice, that the division contract also provides for the alienation of some assets, or the transfer of shares of inheritance assets to one or more heirs in exchange for money, and the team of lawyers of Boschetti Studio Legale can suggest the best solution for you in order to satisfy specific economic needs without compromising the equity of the division.
The procedure of consensual inheritance division among heirs can therefore be schematised as follows:
- Assessment of the inheritance patrimony – before proceeding with the division, it is necessary to assess the inheritance assets that compose the estate;
- Agreement among heirs – all the heirs must give their consent for the division to be stipulated. In case contestations or disagreements arise, one can also resort to a mediation procedure. If the co-heirs find an understanding, an agreement is formed which takes the name of divisional contract.
- Drafting of the contract – once the agreement is reached, the division contract is drafted, signed by all the heirs and authenticated by a notary or by a lawyer.
- Registration of the contract – if the division involves real estate, it will be necessary to register the deed with the Agenzia delle Entrate and the cadastre.
Inheritance division for a foreigner: how it takes place
When one of the heirs is a foreign citizen or a person residing abroad, the inheritance division process might present further legal complications. In fact, Italian regulation provides that for assets located in Italy Italian law applies, but the law of the heir’s Country of origin might influence the division of the patrimony based on specific international or local rules.
Therefore, in the presence of a foreign subject, the aspects to consider in their inheritance division are:
- The applicable law – as regards real estate located in Italy, Italian law applies, but for movable assets the law of the heir’s country of residence may also come into play.
- Double taxation – when an heir resides abroad, they might be subject to double taxation, both in Italy and in the different Country of residence. It then becomes necessary to verify the existence of bilateral treaties between Italy and the heir’s Country of origin to avoid such double taxation.
- Validity of foreign documents – if one of the heirs resides abroad, it might be necessary to translate and legalise documents, such as wills, powers of attorney and deeds of acceptance of the inheritance.
Turning to a law firm for foreigners residing in Italy can be fundamental to correctly manage all these complexities, ensuring protection for the rights of heirs and respect for the regulations in force for the divisional operation.
Legal advice for consensual inheritance division in Italy
When it concerns foreign heirs or those residing abroad, relying on a specialised lawyer is fundamental to ensure that the consensual inheritance division process takes place rapidly and without complications. If you are a foreigner and have to start your division in Italy, a lawyer for inheritance division experienced in international succession law can help you to resolve the problems linked to the applicable law, to international taxation and to the management of complex patrimonies.
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.
How can we help you
Boschetti Studio Legale offers you tailored assistance and professional advice from the very first phases of study of your case. In the case of consensual inheritance division for a foreign citizen in Italy, we will identify which law will be the one applicable to your succession if you are a foreign citizen residing in Italy or an Italian residing abroad, taking into account the legal systems and jurisdictions involved.
Naturally, the lawyers of our team will assist you in the compilation of all the fiscal declarations necessary for the division of the inherited patrimony.
Thanks to the experience matured in the sector, Boschetti Studio Legale will draft the division contract that respects the regulation in force, and at the same time protects the interests of the heirs, including subjects of foreign nationality.
Once the divisional procedure is concluded, the lawyers of our team will register for you the divisional contract with the competent authorities and institutions.
Fill in the form to allow us to assess your case. We will contact you back within 48 working hours to inform you whether and how we can assist you.
This form is reserved for those who need legal assistance on a concrete situation. We do not provide free advice nor answers to generic queries by email. If you have a case that requires professional assessment, fill in the form: we will contact you back for a first exploratory meeting.
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How much does a lawyer for inheritance division cost?
The cost of a lawyer for an inheritance division varies based on the complexity of the case, on the region and on the value of the inheritance. It can start from a few thousand euros for simple situations, but can increase considerably if there are conflicts among the heirs or assets of high value.
How is consensual inheritance division done?
For a consensual inheritance division, the heirs must agree on how to distribute the assets.
The procedure is as follows:
1. Agreement among heirs: All must agree on the division of the inheritance assets.
2. Drafting of a deed: A notary or a lawyer drafts the deed of division.
3. Signature: The heirs sign the deed, which is then registered with the competent authorities.
4. Transfer of assets: The assets are formally transferred.
How long does it take to do the inheritance division?
The time necessary for an inheritance division varies based on various factors. A consensual division can require from a few months to one year, while a judicial division, in case of disagreement among the heirs, can also last several years, especially if there are complex assets or legal conflicts. The duration also depends on the timings of bureaucracy and on the availability of the parties involved.
Who pays the expenses for the inheritance division judgment?
The expenses for the judicial division of inheritance are generally borne by all the heirs in proportion to their inheritance shares. However, the court can decide differently, assigning the expenses to one or more heirs if it considers that they have caused delays or complications in the process. The expenses include legal costs, technical expert opinions and other procedural expenses.
