Inheritance retraction in Italy

For inheritance pre-emption to apply, some fundamental prerequisites must exist. First of all, an inheritance community must exist, which implies the presence of multiple heirs.

As already anticipated, pre-emption does not operate if the division of inherited assets has already taken place, since once the assets are assigned in exclusive ownership or in community, the inheritance community ceases to exist. Even if the division has been ordered by the testator, the rule does not apply, because in such case the community is not formed.

Another requirement is that the transfer of the share takes place for consideration, that is to say in exchange for payment or other type of fungible consideration. It is not applicable, for example, in case of donation. The sale must concern the inheritance share or a part of it and must be destined to a third party extraneous to the community, thus excluding transfers between co-heirs.

The main function of this right is to keep the inheritance community as much as possible within the family circle, avoiding the entry of extraneous persons. This is important to preserve the integrity of inherited assets, prevent excessive fragmentation and reduce potential conflicts between co-heirs. Keeping the assets within the family also facilitates future division operations and the optimal economic management of the patrimony.

If one finds oneself in this situation, Boschetti Studio Legale can help the interested co-heirs to block the transfer to third parties, protecting the pre-emption rights. The firm can also intervene to correctly interpret the regulation in force and, in case of unlawful transfer of the share to third parties, assist in recovering the part sold through the right of redemption.

The Codice civile regulates the inheritance pre-emption applicable in case of sale of an inheritance share. Normally, the inheritance patrimony consists of a multiplicity of assets, therefore the transfer of a single part of an asset does not directly fall within the scope of application of the pre-emption, unless that asset in fact represents the entire patrimony or if the parties intend to consider the sale as a transfer of the entire inheritance share.

A particular situation occurs when a co-heir married under the legal community regime intends to purchase an inheritance share. In this case, pre-emption does not apply, since the spouse enters into community by law. The transfer of bare ownership is also subject to pre-emption, because the rule refers to the inheritance share in general.

In case of sale with right of repurchase, pre-emption does not apply, since the exercise of the right of repurchase precludes the activation of the pre-emption. The same applies to sales with reservation of ownership: the pre-emption is triggered only with the definitive transfer of ownership, which takes place with the payment of the last instalment of the price.

If the co-heir sells their share without respecting the pre-emption right, the sale is not annulled, but the other co-heirs can exercise the right of redemption. This right allows redeeming the share sold from the purchaser or from subsequent purchasers under the same conditions provided in the deed of sale.

It must in fact be specified that inheritance retraction is a complex case, which comprises two distinct phases:

• the right of pre-emption, by virtue of which the subjects participating in the community have the right to be preferred over third parties extraneous to the community when one of the co-heirs intends to sell their share in the persistence of the community regime;
• the right of redemption, having absolute nature and exercisable against any purchaser of the assets to whom, in the persistence of the community, these have been sold for consideration in violation of the pre-emption right.

Therefore, to the right to be preferred in the purchase corresponds the obligation for the potential alienating co-heir to notify the other co-heirs of the proposal of alienation, thus putting them in a position to accept and to await the lapse of the time granted by law to the offerees before reaching the perfection of the transfer.

Should this obligation not be respected, co-heirs are attributed by law the right to redeem the share from the purchaser and any subsequent successor in title.

It can therefore be concluded by stating that the right of redemption represents the most complete remedy for the breach of the pre-emption obligation.

Boschetti Studio Legale can promptly intervene to protect the rights of the client, helping them to exercise the redemption and to regain the share sold, acting in short time to avoid the perfection of the transfer.