Partition of Property among Family Members
Partition of The Estate: how does it work?
Should there be more than one heir nominated in a Will or in accordance with Italian law, a condition of joint-ownership of rights and duties concerning the inheritance is established among the co-heirs.
A testator’s estate is composed of assets and real rights: the co-heirs receive the estate in proportion to their inheritance quota, either as apportioned in the testator’s Will or in accordance with the law – and, in the same proportion, they acquire any credits due and take on all the debts of the testator.
Partition of an estate refers to the division of all the assets between the beneficiaries.
It should be noted that each co-heir has the right to request partition of an estate at any time following the testator’s death, unless otherwise stipulated by the testator in a Will.
All co-heirs, or their universal or special successors (legatees), must take part in the partition. Failure of one or more beneficiaries to participate in partition renders rights invalid, and this cannot be rectified later by absentee co-heirs.
According to Italian legislation, the partition of the estate can be executed through three methods:
-Amicable (bargaining) partition
An amicable partition is made through a contract with the purpose of converting co-heirs’ legitimate rights to a quota of the estate into rights on single assets forming part of the estate. This ensures that the value of the assets individually assigned (known as de facto quotas) equate to the value of the joint ownership quotas.
Should co-heirs disagree on the way the partition of an estate has been made, each of them can refer it to the judicial authority. A judgment of how the partition of the estate will be executed will be determined through these stages:
-Formation of the inherited estate,
including the assets which have been gifted to the co-heirs by the deceased
-Appraisal of the assets,
according to their market value. The testator may have nominated a person or organisation in a Will, to conduct the appraisal. If assets of the same category are divided, an estimate is not needed. In other cases, the estimate of individual assets is essential in order to create portions of value corresponding to the quota designated for each co-heir by the testator, or if the decedent was intestate, by the Italian law.
-Possible sale of indivisible assets:
Before partition of an estate, it may be necessary to sell real estate property or to assign property to a co-heir in return for a corresponding amount of money to be shared among the other co-heirs.
-Formation of the portions due to every heir,
which are as many as the co-owners in proportion to the respective quotas.
Any gifts received by co-heirs prior to the testator’s death are taken in to consideration. This calculation will be taken in to account for partition of an estate to prevent any unequal treatment among the co-heirs.
-Assignment or attribution of quotas.
The decision of who gets what assets. Where inherited quotas are equal, assets will be assigned as lots. Attribution refers to asset apportioning if quotas are of unequal size.
A testator can stipulate in a Will, the portions to assign to each co-heir, or can simply lay down terms in order to set quotas.
It may occur that the effective value of a testator’s assets does not cover the quotas stipulated in a Will. Again, where partition of an estate is disputed, co-heirs have the same recourse: amicable or judicial partition.
If you have been named as co-heir to an Italian estate and you live abroad, it may be difficult for you to manage, or be involved in, the succession procedures or participate in the partition of the estate in Italy.
If you need independent advice or if you need to confer a Power of Attorney to sign inheritance documents and paperwork, a specialist Italian inheritance lawyer will assist you and have your best interests in mind throughout your case.