Legitimate succession in Italy
Legitimate succession is activated when the deceased has not arranged a will that integrally regulates their succession, or when the existing will does not cover all the assets.
It is a form of succession that takes over in the absence of total testamentary will, or when the will is not sufficient to regulate the entire patrimony. In practice, it applies when a complete testamentary disposition is missing or when the will excludes part of the inheritance estate.
Legitimate heirs vary based on the degree of kinship with the deceased and on the presence of other categories of successors. The surviving spouse, the children, the direct descendants, the parents, the ascendants, the brothers and sisters, and finally other relatives of more distant degree, are the main ones called to succeed, but, in the absence of these, the inheritance can be devolved to the State. In Italy, the relevance of kinship is limited to the sixth degree, beyond which no relative has the right to succeed.
The calculation of the degrees of kinship is fundamental to determine who has the right to inheritance.
In direct degrees, one counts the number of generations between the deceased and the heir. In collateral degrees, instead, one ascends to the common stock and descends towards the other relative. Children, including adoptive ones, inherit in equal parts. In the absence of children, the parents inherit together. If parents are missing, the inheritance is divided between the ascendants of the paternal and maternal line equitably. Brothers inherit when there are no other closer relatives. However, if they are unilateral brothers (having in common only one of the two parents), they receive half compared to bilateral brothers.
In the case in which the parents concur with the brothers, at least half of the inheritance is reserved to the parents, and the remaining half is to be divided among the brothers. The other relatives, up to the sixth degree, inherit in equal parts, but the closest relative excludes those of more distant degree. In the presence of a surviving spouse, if they concur with children, their share amounts to half of the inheritance; if they concur with two or more children, this share drops to one third. In the absence of children, but with other relatives such as ascendants or brothers, the spouse receives two thirds of the inheritance. In the absence of other heirs, the spouse obtains the entire patrimony.
It is important to note that, in case of legal separation, the separated spouse will concur in the inheritance as if they were not separated, except in the case in which the separation has been imputed to them.
In the case in which there are no legitimate heirs or all of them renounce the inheritance, the latter passes to the State, which is responsible for the inheritance debts, but only within the limits of the inheritance patrimony.
If a person called to inherit renounces the inheritance, their share is increased in favour of the other legitimate heirs, according to the principle of accrual. Furthermore, the descendants of a renouncing heir can take their place instead of the parent or relative, according to the rule of representation, which allows them to succeed as if they had been in the degree of their ascendant.
The situation becomes complicated when the deceased is a person residing abroad, since in this case it is necessary to take into consideration not only Italian legislation, but also international one. The rules on legitimate succession of foreigners residing in Italy depend on the habitual residence of the deceased and, sometimes, on their nationality.
In the absence of a will, foreigners residing in Italy must therefore follow Italian regulations, unless they have chosen a different legislation in the will.
Boschetti Studio Legale specialises in assistance to foreigners residing in Italy, addressing with experience the management of international successions and, therefore, also legitimate succession for foreigners residing in Italy. Thanks to our advice, the rights of legitimate heirs are always protected, even in the presence of different laws at international level.
- Successione
- Dichiarazione di successione
- Successione ereditaria
- Successione legittima
- Successione testamentaria
- Successione internazionale
- Pianificazione successoria
- Successione impresa
- Passaggio generazionale impresa
- Patti di famiglia
- Pianificazione patrimoniale
- Patti successori
- Retratto successorio
- Segregazione patrimoniale
- Fenomeni particolari successione
Practical aspects for legitimate succession
Daily experience demonstrates that successions regulated by a will are not particularly frequent. This phenomenon suggests that, in most cases, the regulation contained in the Italian Codice civile is appreciated for providing for the division of the inheritance among legitimate heirs when a will is missing.
The provisions contained in the Codice civile, which regulate inheritance devolution in the absence of a will, are defined as a whole as “legitimate succession”.
The term “legitimate” reflects the fact that the law provides to determine exactly who the legitimate heirs are and the share due to each of them. This form of legitimate succession is also known as intestate succession, since it applies in the absence of a will.
Legitimate succession intervenes not only when the deceased has left no will, but also when the existing will does not cover all the assets owned by the de cuius at the moment of death.
For example, if a will drafted in 2013 provides that one house is left to Giovanna and another to Francesco, but the deceased in 2014 purchased a house in Rome without updating the will, the house in Rome will be subject to the rules of legitimate succession. In this case, Italian law will establish how to distribute the residual patrimony, not covered by the will.
If you find yourself in a similar situation, Boschetti Studio Legale is able to manage with competence successions partially regulated by a will, ensuring that all assets not covered are distributed according to the provisions of legitimate succession.
Who benefits from the rules of legitimate succession?
In the absence of a will, Codice civile establishes that the beneficiaries will be the closest relatives of the deceased. In the front line are the surviving spouse and the children, speaking in this regard of legitimate succession of the spouse and legitimate succession of the children.
If there are no children, the beneficiaries are the brothers, sisters and ascendants. Finally, if these relatives are also missing, the inheritance will go to the more distant relatives, with the rule that a relative of closer degree excludes the more remote ones from the succession.
The professionalism of Boschetti Studio Legale is at your disposal to ensure that legitimate heirs receive the part of the inheritance to which they are entitled. If disputes or difficulties arise in determining who the legitimate heirs are, our team of lawyers specialised in the matter will assist you in the identification and correct division of the patrimony.
In other words, legitimate succession is based on the presumption that, if the deceased had drafted a will, they would probably have disposed of their assets in favour of their closest family members. This presumption is based on an objective criterion, namely the degree of kinship, avoiding the problem of establishing who, among the possible successors, is the “most deserving” of receiving the inheritance.
If, in fact, one had to proceed to a choice based on emotional bonds or other subjective criteria, it would be difficult to clearly establish who should have benefited from the inheritance.
However, the presumption that the deceased would have disposed in favour of the closest family members cannot be applied indefinitely. In fact, when the bond of kinship is too distant, as in the case in which there are no relatives up to the sixth degree, the patrimony of the deceased will be devolved to the State.
It must also be underlined that the beneficiary of legitimate succession is defined as “legitimate heir”.
It is important not to confuse this category with the forced heirs (for whom one speaks of succession of forced heirs), who are those to whom the law reserves a reserved share, the forced heirship.
Forced heirs, according to the Codice civile, are the spouse, the children, and, in the absence of children, the ascendants. They have the right to contest donations or testamentary provisions that violate the reserved share, thus preventing the testator from depriving their legitimate family members of the minimum share due to them.
A recurring case in practice is that concerning succession between mother and two children: Italian law provides that the mother is a forced heir, and therefore has the right to a part of the patrimony of the deceased. In the absence of a will, the patrimony will be divided between the children and the mother according to the share established by law: the children, as co-heirs, divide half of the patrimony, while the other half goes to the mother. If the deceased was married, the mother’s share could be influenced by the presence of a surviving spouse.
Another peculiarity that is highlighted and that our Studio Legale has dealt with assiduously concerns succession by stocks, provided for by Italian law: it applies when the patrimony of a deceased person is divided among multiple heirs, but without a proportional division. Instead of dividing the patrimony based on the share due to each heir, a fixed share is established for each stock or line of kinship, as in the case of a division between children, spouses and other relatives.
This type of succession applies mainly in contexts in which there is no clear proportional division and where division by stocks prevails.
Finally, another fundamental aspect of legitimate succession concerns its application in international contexts. Foreigners residing in Italy may find themselves in the situation in which Italian law automatically applies to intestate succession, unless a different jurisdiction has been expressly chosen. The habitual residence of the deceased plays a crucial role in determining the law applicable to their succession.
Legitimate succession and testamentary succession: differences
It is a sensitive topic, which we would prefer to be exempt from, as it involves the occurrence of circumstances difficult to imagine. However, understanding the differences between legitimate and testamentary succession is fundamental. Only in this way is it possible to act in a conscious manner in the management of one’s patrimony, ensuring to one’s loved ones the correct attribution of succession rights.
In fact, at the death of a person, their patrimony enters the regime of inheritance succession, a legal institution that allows an individual to take over all the legal positions of which the deceased subject was holder.
If you know the functioning of this process, you will be able to adopt the right strategies to protect your assets and ensure the well-being of your family.
Therefore, foresighted patrimonial planning should also take into account unforeseen eventualities, given that inheritance succession is an articulated procedure that deserves particular attention.
The main difference between legitimate succession and testamentary succession concerns the freedom of disposition of the patrimony, as well as the available shares.
Legitimate succession finds its foundation in the law. In other words, it is up to the legislator to establish the modalities of distribution of the deceased’s patrimony, determining who will have the right to inherit. It represents a complementary succession compared to the testamentary one, which, instead, is regulated by the will expressed in the deceased’s will.
Therefore, legitimate succession applies when the deceased has left no will, or when the latter is incomplete, that is to say it does not concern the entire patrimony.
The subjects who can access legitimate succession, as established by the Codice civile, are: the spouse, the children, the parents, the brothers and sisters, other relatives up to the sixth degree, and finally the State.
On the other hand, testamentary succession comes into play when the deceased has prepared a will, that is to say a legal document drafted in full lucidity, with which they dispose of their patrimony for the period following their death.
It must be strongly underlined that the law protects the rights of the deceased’s closest relatives, the so-called forced heirs: the spouse, the children and the parents. To these is reserved a portion of the patrimony, known as forced heirship share or reserved share. In such circumstances, one speaks of necessary succession, since these relatives have the right to such share, regardless of what is provided in the will.
In other words, it is not possible to dispose freely of the entire patrimony during testamentary succession. One can, in fact, destine only a part of the patrimony, called available share, to which both legitimate heirs and those possibly indicated in the will can have access.
On the contrary, in intestate succession, Italian law provides that the assets be divided among the closest family members, such as the spouse and children, without the possibility of a free choice by the deceased.
For foreigners residing in Italy, legitimate succession is subject to Italian laws, unless the contrary has been expressly established through a will.
Address the challenges of legitimate succession with the advice of Boschetti Studio Legale, where our experienced lawyers will guide you in patrimonial division, protecting your rights and those of the other forced heirs.
For example, a foreigner residing in Italy who owns assets both in Italy and abroad might find themselves in a situation in which Italian laws prevail, unless the will expressly indicates another legal system. In this case, legitimate succession will establish who the legitimate heirs are and how the assets must be divided.
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Legal advice for legitimate succession for a foreigner residing in Italy
The procedure concerning legitimate inheritance for foreigners residing in Italy may prove complex due to the need to determine which is the law applicable to the succession.
When we find ourselves in a case of legitimate succession for foreigners residing in Italy, and the deceased has residence in Italy, Italian law would govern the division of assets, but if there are assets abroad, other international legal regulations might come into play.
Foreigners residing in Italy must be aware that the habitual residence of the deceased plays a crucial role in determining the criterion to adopt. If the deceased lived in Italy for a long period and established strong links with the Country, it is likely that Italian law will regulate legitimate succession, even if the deceased had the citizenship of another Country.
For correct management of legitimate succession, it is fundamental to consult a lawyer for international successions, who can analyse the specific circumstances of the case and provide advice on how to apply the rules of succession.
Boschetti Studio Legale is at your side. With a team of lawyers experienced in international law it provides complete advice to prevent and resolve all possible conflicts linked to the division of assets between different jurisdictions, ensuring that legitimate heirs obtain the part of the inheritance to which they are entitled.
A law firm for foreigners residing in Italy, in fact, is able to offer the support necessary to ensure that legitimate heirs are protected in their taking over of the inheritance, resolving conflicts between different laws and protecting the rights of each forced heir.
In conclusion, legitimate succession is a complex process that involves fundamental rights and precise rules, especially when it concerns foreign citizens residing in Italy.
To avoid difficulties in the management and planning of the inheritance, and therefore ensure correct distribution of assets among the successors of the de cuius, it is advisable to turn to a lawyer experienced in international successions, capable of providing specialist advice to navigate between Italian and international regulations.
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To which professional should one turn for succession?
To correctly manage a succession, it is fundamental to turn to a lawyer specialised in inheritance law. An experienced professional will know how to assist you in the management of legal matters, ensuring that the inheritance is distributed in compliance with the law among the various categories of successors, resolving any family disputes and addressing complications linked to assets located abroad or to conflicts between national laws.
How much does legitimate succession cost?
The cost of a legitimate succession depends on the complexity of the case, such as the number of assets, the heirs involved and the presence of issues of an international nature. Generally, inheritance taxes, fees for legal advice and any fiscal-administrative expenses must be considered.
It is advisable to obtain a detailed quote that takes into account all the variables linked to the specific situation.
Which lawyer deals with succession?
The ideal professional to address a succession is a lawyer specialised in inheritance law or family law. These professionals have a deep knowledge of regulations concerning the division of assets, the shares reserved to forced heirs and the issues deriving from invalid or incomplete wills, such as to be able to manage the natural conflicts between heirs, and address international implications in case of successions with assets abroad.
