Disputes regarding wills and successions in Italy?
When might you need a lawyer or a legal firm of cassation lawyers in Rome or in Italy?
What are the disputes related to successions and inheritances that justify the intervention of a lawyer? Let’s explore them in this brief post.
A lawyer dealing with wills and successions
A lawyer dealing with wills and successions has a very delicate role because they enter into family relationships or other already difficult relationships (such as relationships between children from different marriages).
Issues should always be addressed with tact, prudence, and the goal of minimizing reasons for disputes as much as possible.
The use of mediation procedures can often be decisive in preserving good relationships and achieving satisfactory results for everyone in a timely manner.
How to contest a will
A will can be contested for various reasons, for example, because it might be false: in this case, the authenticity of the document and the signature must be verified through an expert examination.
In other cases, the will can be contested because it violates the legitimate rights of one of the heirs protected by the law, such as children and the spouse.
Indeed, in the presence of the deceased’s wife or husband, or in the presence of children, the law stipulates that they are entitled to a share of the inheritance that cannot be affected by the will.
If the will affects the legitimate share, it can be contested, but consideration must also be given to the donations made by the deceased during their lifetime.
How to write a holographic will
Clients often seek the help of a lawyer or a notary to write a will. However, it frequently happens that the will is handwritten by the deceased and kept at home.
The holographic will is a valid choice when there is an understanding of succession issues, and there are the capabilities to reasonably and comprehensively dispose of one’s assets. However, be cautious because some errors could jeopardize the desired outcome.
When writing a holographic will, it is important to specify the assets to be bequeathed, identify the heirs and any legatees, sign and date the document, and leave instructions for someone on where to find the document.
A more secure solution is often to consult a lawyer or a notary and then deposit the will with the notary.
What happens if some heirs are minors
In the case where some of the heirs are minors, there are peculiarities in the succession. Minors are obligated to accept the inheritance with the benefit of inventory.
Unlike adults who can accept or reject the inheritance, minors open an “inventory” process to be carried out with the assistance of the Court Clerk.
The spouse’s right of residence in the house
According to Article 540 of the Civil Code, the spouse, even if there are other heirs, is reserved the right of residence in the house designated as the family residence and the use of the furnishings accompanying it, whether owned by the deceased or common.
This means that if the spouses lived in the dwelling, whether it was solely in the name of the deceased or jointly owned with the survivor, the surviving spouse has the right to keep the property for themselves and use it for their lifetime.
Succession in the restructuring bonus credit
In the event of the death of the holder of a credit resulting from restructuring (eco bonus or superbonus, even 110%), the corresponding credit is inherited. This also applies in the case of the death of the assignee who “acquired” the credit from others, as already provided for tax deductions from restructuring.
The interpretations provided by the Revenue Agency still leave doubts, including the scenarios in which the right to credit on the tax drawer can be transferred to third parties by the heirs or for the case of hereditary communion on the right to credit (to be exercised in compensation or by transferring shares).
Hereditary co-ownership
Until recently, hereditary co-ownership was understood as an operation that seemed to be imposed by Legislative Decree 346/1990, the consolidated text on inheritance and gift tax, and even earlier by Presidential Decree 637/1972.
This operation involved adding the value of donations made by the deceased to the value of the inheritance in order to verify whether the exempt threshold of one million euros for spouses and direct relatives or 100 thousand euros for siblings had been eroded in whole or in part due to such donations made by the deceased during their lifetime.
Is hereditary co-ownership still necessary in 2023?
The Revenue Agency, in Circular No. 29/E of October 19, 2023, implementing a series of decisions by the Court of Cassation, stated that the succession laws on inheritance tax have implicitly repealed the obligation of hereditary co-ownership. This is because it is no longer suitable for the current system of inheritance tax, based on a proportional taxation with variable exemptions based on the relationship of kinship.
This has led to situations where many people have paid additional taxes unknowingly for a period of 16 years, while those who paid taxes after 2016 had to deal with tax demands that should not have been made since 2000.
Regarding the donative co-ownership, this rule has remained unchanged and requires considering previous donations when making a new donation.
In summary, the tax system is now unbalanced, with identical tax rates and exemptions in both taxes, but without the obligation of hereditary co-ownership in inheritance tax, while in gift tax, it is necessary to consider previous donations, potentially leading to a proportional taxation of the entire taxable value of subsequent donations.
Unit-Linked policies as a succession planning tool
Unit-Linked policies are a useful tool for succession planning. These financial and insurance instruments allow for the deferral of income and stamp duty taxes at the time of redemption and are excluded from the inheritance.
The exclusion from the inheritance of Unit-Linked policies allows allocating a portion of the assets outside the legitimate share or disposing of the succession more flexibly.
For more information on how to plan succession, read here.
Hereditary communion on assets
Following the death of the deceased, heirs have one year to submit the succession declaration. With the succession, if there is more than one heir and no single property has been assigned to each by the will, the heirs may find themselves in joint ownership of the inherited properties.
In the case of joint ownership, known as hereditary communion, all heirs have the right to request the dissolution of the joint ownership, meaning to receive:
a) a portion of the property each, possibly paying a settlement to others;
b) the property to be sold to third parties, and the proceeds to be distributed to each according to their share.
Disputes related to hereditary communion often end up in court due to the difficulty of reaching an agreement among the parties regarding the management of the inherited properties.
Where an agreement for the dissolution of the communion is found, it goes to the Notary, and where an agreement is not reached, each of the co-heirs can turn to the court to obtain a judicial division.
The dormant inheritance
If no one accepts the inheritance, it is referred to as a dormant inheritance, a
situation where there is apparently no owner of the deceased’s assets.
In the case of a dormant inheritance, all those with an interest (e.g., banks, other creditors, condominium) can request the appointment of the curator of the dormant inheritance.
The Curator of the dormant inheritance is appointed by the Court from lawyers at the bar who deal with successions to conduct an examination of the deceased’s assets, debts, and to trace any rightful heirs.
Unaccepted inheritance for 10 years
In the case where no one accepts the inheritance for 10 years, it is devolved to the State.
The State accepts the inheritance by default and tacitly, but does not respond to hereditary debts beyond the value of what it has received.
Lawyer for successions in Rome
If you have other issues related to succession, will, or inheritance, and you are looking for a cassation lawyer or a legal firm in Rome, feel free to contact us for an initial consultation without obligation.
