What it is
The donation is an appropriate instrument to satisfy many interests. In fact, special clauses (so-called “conditions” or “obligations”) can be inserted to meet some specific requirements (e.g. I give you this house in return for your caring for me).
A very common case is the donation of a property subject to usufruct in favour of the donor, which means that the giver relinquishes ownership of the property in advance, retaining for himself the right to occupy it, which will lapse automatically at the time of death (or the deadline); the donor who has reserved the usufruct will have the use of the property (e.g. he may live in it or be able to collect any rent) but will also bear the ordinary costs and any taxes.
Donation is an act subject to revocation, for some causes of ethical and social imperative. In particular, it can be revoked:
- for ingratitude of the recipient: that is, if the recipient has committed very serious acts against the donor or his property;
- for the arrival of children: that is, if the donor produces children or descendants, or finds out he has them after the donation.
A donation made to the donor’s forced heirs is considered by the law to be an advance inheritance, which means that, at the time of death of the donor, it must be attributed to the reserved quota.
Protection of forced heirs
With specific reference to the relationship between the donation and the future succession of the donor, it is necessary to know that the donation is an act “at risk”, which can prejudice the subsequent sale of the assets donated or the obtaining of a loan secured by the donated property.
The law, in fact, protects certain categories of relatives (forced heirs), allowing them a share of the inheritance (forced heirs) even contrary to a desire of the deceased expressed in a donation. These persons are the descendants (children and grandchildren), ascendants (parents, grandparents, and so on) and the spouse: if donations, though valid and enforceable, should, at the time of death of the donor and after very complicated calculations, be deemed harmful to the rights of a forced heir, the latter may take legal action to have them declared invalid (an “action for reduction”).
Protection of the forced heirs may also involve third parties who have acquired rights from the recipient of the donation (including banks which for the granting of a mortgage may have accepted a donated property as collateral). Indeed, if the recipient does not have sufficient assets to satisfy any claims of the forced heir, a claim may be made for return of the asset by the purchaser (an “action for restitution”), who may extricate himself with the payment of a corresponding amount.
It is useful to point out that the forced heirs cannot give up their right to sue as long as the person whose legacy is in question is still alive, even by giving their assent to the donation; only when the donor is dead may they acquiesce in the donation.
The Role of the Notary
Given the complexity of the problems that can arise from a donation it is advisable to seek the advice of a notary who can suggest legal solutions that may prevent future painful family disputes and serious issues of saleability of the donated assets. The notary has a central role in planning a reasoned arrangement for the family future that will lead to peace of mind.
The donation, given its effect on the assets of the donor, is carried out by public deed in the presence of two witnesses.