Donations, inheritances, wills and living wills, cohabitation contracts, marriage agreements, disabilities and laws relating to future generations. As a trusted consultant and public official, the notary can help us deal with these delicate situations safely and in full legality.
A will is a revocable document by which any person of sound mind may make disposition of his assets at a time when he will have ceased to live. There are several types of wills: holograph, public (notarial act in the presence of two witnesses) and secret. A word of warning: if the will is detrimental to the rights of a forced heir, the latter can take legal action to challenge it in whole or in part. It is essential, therefore, in these cases, to contact your notary in order to achieve the desired result within the law and to avoid future disputes among the heirs.
The will is a revocable document by which any person of sound mind may make disposition of his assets at a time when he will have ceased to live.
In our legal system, there are two common forms of wills:
The holographic will is a private document which has some formal requirements:
Although it is very simple and commonly used, this testamentary form has some disadvantages:
To avoid these issues, it is possible to have the will drawn up by a notary: i.e. a public will that is formalised by the notary in the presence of two witnesses and has significant advantages:
In addition to the public will, there is also the secret will (not common in practice), which is a will written by the testator or by a third party and delivered personally to the notary (who therefore does not know its contents); the notary merely draws up a simple statement of receipt.
The law protects certain categories of family members (“forced heirs “), allowing them a share of the inheritance (the “legittima” or legitimate portion) even contrary to any expressed wishes of the deceased in his will. These persons are the descendants (children and grandchildren), ascendants (parents, grandparents, and so on) and the spouse.
Depending on whether or not such persons exist at the time of death, the law provides, sometimes by way of very complicated calculations, what the share is of the inheritance reserved for them, considering also the debts of the deceased and any donations made by him during his lifetime, and what, therefore, is the share of the (available) inheritance of which the testator may freely dispose according to his own wishes.
There is therefore a limit to the freedom to make a will: if the will affects the rights of a forced heir, that heir may take legal action to contest the terms of the will.
To facilitate understanding of the different rules governing succession in Europe, the Council of Notaries of Europe (CNUE), with the support of the European Commission has created the site www.successions-europe.eu in the 23 official languages of the 28 countries that are members of the European Union. The site provides the information needed to follow and understand any question relating to a succession in any European country.
The Role of the Notary
It is essential, therefore, in these cases, to engage a notary so as to prevent future painful family disputes and, above all, problems of saleability of assets under the will. Thanks to his special competence in matters of succession, the notary may suggest, in the case of a public will, how best to achieve the result intended by the testator, in compliance with applicable laws, avoiding any clauses or provisions which would be invalid because they are inconsistent with the provisions of the law.