There are two types of succession: “testamentary”, when it is governed by a will, or “intestate” when it is governed solely by the law. In any case, our legal system dictates that a share of the inheritance, the “legittima”, go to close relatives by right. Thanks to his specific knowledge on the subject, the involvement of a notary is extremely important in making the choices that best suit your needs and in taking all the steps to secure a safe succession.
What it is
With succession following a death, one person takes over from another in one or more legal situations that are not extinguished by death.
From the point of view of the assets covered by it, the succession can be one of two types:
- universal: when it relates to the entire estate or a part thereof, and this confers the status of heir
- particular: when it relates to one or more assets, and this confers the status of legatee.
The succession can be one of two types:
- testamentary succession: when is regulated by a will;
- intestate succession (separate link to Table 1 to be prepared: see bottom of the page): in the absence of a will, the succession is regulated by law.
If there is a will but it does not cover the succession as a whole, it will be partly testamentary and partly intestate.
Certain persons, such as a spouse, descendants or ascendants in the absence of descendants, are in any case entitled to a share of the inheritance. This right to the obligatory “legittima” share poses a limit to testamentary freedom and falls under the so-called “necessary” succession.
Succession following a death imposes a series of requirements from the point of view of taxation.
In particular, within one year from the opening of the succession, those having a right to inherit must submit to the competent Tax Office a declaration of succession. This statement contains the particulars of the successors and the description of the assets of the estate, and serves for the payment of inheritance tax.
Compliance with this tax is of fundamental importance, since it is an essential condition in order to take full possession of the assets received as the result of a death.
Acceptance of the inheritance
In order to acquire the inheritance, one must accept it. Acceptance (which cannot cover only a part of the inheritance) may be: express, by way of a receipt of a notary or the Registrar of the Court in the place where the deceased had his last domicile (and, in the case of minors or incapacitated heirs there must also be an authorisation of the court); or tacit, i.e. inferred from conduct that manifests a willingness to accept (for example, transferring one’s residence to the house one has inherited). If the heir accepts, he also takes on the debts of the deceased.
For this reason, the law provides, with the same formalities required for “express” acceptance, the possibility of:
- renouncing the inheritance, that is to reject it (with the result, though, that the descendants will be offered the inheritance);
- accepting conditionally (mandatory in the case of minors, legally incompetent persons, or companies), whereby the heir does not answer for the debts of the deceased with all his personal assets, but only up to the value of what was received as an inheritance.
The role of the notary
Thanks to his specific training in matters of succession, the intervention of a notary is of utmost importance in all cases of succession following death because he:
- assists the successors in the preparation and timely submission of the declaration of succession;
- takes care of registering the heirs as owners of the assets of the deceased at land registry offices;
- formalises the official documents required for the releasing in favour of the heirs of bank or securities accounts held in the name of the deceased;
- obtains court authorisation required in case of bequests to minors or incapacitated persons;
- formalises the documents relating to the acceptance or rejection of the inheritance.
In all these areas, the advice of the notary ensures the choices are made that best suit your needs.
How it works elsewhere in Europe
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.