Partition of An Italian Estate

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Co-heirs and inheritance

An estate comprises assets and rights. Partition of an estate refers to the division of all the assets between all the beneficiaries. Where there are two or more heirs, this establishes a condition of joint ownership of rights and duties concerning an inheritance.

Each co-heir inherits a portion of the deceased’s estate. This allocation is either in accordance with the deceased’s will or, where the deceased died intestate, according to law. Likewise, in the same proportion, co-heirs inherit any debts the deceased left and take on any outstanding liabilities.

Each co-heir has the right to request the partition of an estate at any time unless otherwise stipulated by the deceased in a will. Importantly, all co-heirs, or their universal or successors (legatees), must take part in the partition. If beneficiaries fail to participate in the partition, it renders their inheritance rights invalid. This cannot be rectified later by absentee co-heirs.

In order to achieve partition of an estate Italian legislation provides three methods.

– Amicable (bargaining) partition

– Judicial partition

– Testamentary partition

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Amicable partition of an estate

An amicable partition is a contractual undertaking between co-heirs. Because the purpose is to convert co-heirs’ legitimate rights into individual assets in the estate, all co-heirs need to agree who gets what. At the same time, co-heirs need to ensure that the value of the assets (known as de facto quotas) equate to the value of the joint ownership quotas.

Judicial partition of an estate

Should co-heirs disagree regarding partition of an estate, each of them can refer it to a court. A judge will therefore rule how the estate should be divided. The process goes through these stages:

Formation of the inherited estate

This involves an assessment of the entire estate including any assets that the deceased gifted to the co-heirs. The entire calculation forms the partition of an estate to prevent any unequal treatment among the co-heirs.

Appraisal of the assets

An evaluation of all assets according to their market value. The testator may have nominated an executor or an organisation in a will, to conduct the appraisal. Where assets that need division, fall into the same category, it may not be necessary to value them all. In other cases, the estimate of individual assets is essential in order to create portions of value corresponding to the quota for each co-heir. By law, this would also be the case if the decedent was intestate.

Possible sale of indivisible assets

In order to make up quotas for co-heirs, it may be necessary to sell real estate property or to assign property to a co-heir in return for a sum of money.

Formation of the portions due to each co-heir

Following reconciliation of the whole estate, the court assigns inheritance quotas for each co-heir.

Assignment or attribution of quotas.

The court decides 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.

Testamentary partition of an estate

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 a dispute arises regarding partition of an estate, co-heirs have the same recourse: amicable or judicial partition.

Finally …

Italian inheritance is a complex matter. In addition, if you own assets in more than one country, this can further compound the complexity. We recommend you seek independent legal advice regarding your personal situation. If we can be of assistance, please get in touch.

For more information about Italian succession and inheritance, you may find our Italian Succession Guide useful.

At De Tullio Law Firm, we have over 55 years of expertise managing cross border succession and estate planning matters throughout Italy. We are a full member of STEP, the world’s leading association for trust and estate practitioners.

You may also be interested in Legitimate Heirs. Rights of “Forced Heirs” in Italian Inheritance

 

 

 

Italian Inheritance Lawyer

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How can an Italian inheritance lawyer help you?

The Italian inheritance process can be complex. Because it is essential to obtain the right legal advice, having the right lawyer on your side will be massively beneficial. This is especially true if you are not living in, or are unable to travel to Italy to deal with estate administration. If you are a beneficiary of assets in Italy, and you are wondering whether to accept your Italian inheritance, it is a good idea to engage a specialist Italian inheritance lawyer to support you. Because accepting an Italian inheritance is a formal process, it is worth seeking advice regarding the implications of accepting or renouncing an inheritance.

Engaging the services of a specialist inheritance lawyer in Italy therefore simplifies the administration of an estate. Firstly, a lawyer can help gather all the documentation relating to property, assets and/or land. Secondly, a lawyer can help speed up the whole inheritance process, from identification and location of beneficiaries entitled to the estate to tax payments and distribution of assets.

In addition, an Italian inheritance lawyer can help draft certified translations of documents, appoint a local notary and manage all required procedures with the relevant Italian authorities to ensure that assets are transferred to the names of the entitled beneficiaries.

Get Your FREE Guide to Planning Your Inheritance in Italy

Our PDF guide explains the ins and outs of preparing your inheritance under Italian law

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Furthermore, an Italian inheritance lawyer can advise whether there are any claims or rights on assets and/or properties according to Italian Inheritance law. A lawyer can conduct searches for properties, titles, deeds and records, obtain an appraisal or a survey of a property with the support of qualified professionals to appraise the value of the deceased’s estate and determine whether there are any debts and liabilities.

Dealing with legal matters after a loss can be stressful

The loss of a loved one makes families feel fragile and emotionally vulnerable. This is completely understandable. Dealing with inheritance issues on top of loss can feel very stressful. Having an attorney with legal expertise in Italian inheritance matters will help relieve some of that strain.

A trustworthy representative in Italy

A specialist Italian inheritance will be acting on your behalf and in your interests  throughout your case. This means that you can be assured of having a calm, rational, professional and trustworthy presence in Italy. You will also receive sound advice for all the issues that arise during the inheritance process.

Italian estate tax is complex

The Italian probate procedure is not always straightforward. It can be frustrating and time-­consuming. Your solicitor will be able to guide you through all the legal and tax issues that may arise.

A lawyer can help you gather proof

You may need to be able to prove your legal entitlement. Your solicitor will be able to provide legal expertise and help you to gather the necessary documents and evidence.

A lawyer can support you in and out of court

Most inheritance cases go uncontested. Because it reduces costs where there are claims, cases  are generally settled out of court. However, if your case does end up in court, having legal representation can be enormously advantageous. Having your own lawyer will ensure that all of your documents are in order, strengthen your legal position and add knowledge to your case.

If your inheritance includes a property in Italy. Think long term

It is essential to take advice on the succession implications of owning a property in Italy at an early stage. A specialist inheritance lawyer will have experience of managing all aspects which arise with cross-border assets or estates.

Finally …

Above all, engaging the services of an Italian inheritance lawyer will give you the peace of mind that your case is handled properly and that proceedings run smoothly and efficiently.

Italian inheritance is a complex matter. In addition, if you own assets in more than one country, this can further compound the complexity. We recommend you seek independent legal advice regarding your personal situation. If we can be of assistance, please get in touch.

For more information about Italian succession and inheritance, you may find our Italian Succession Guide useful.

At De Tullio Law Firm, we have over 55 years of expertise managing cross border succession and estate planning matters throughout Italy. We are a full member of STEP, the world’s leading association for trust and estate practitioners.

 

Power of Attorney and its legal implications

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You may have often heard of “power of attorney,” yet you may still not know exactly what its purpose is.

To shed some more light on the subject, here are some basic facts on PoA. Along with the legal ramifications to purchasing and/or inheriting real estate in Italy.

What is a Power of Attorney?

A Power of Attorney – “Procura” in Italian, is a legal document by means of which “principal” gives certain powers to act legally on his/her to someone else: the “agent”. A “Procura” clarifies exactly what powers the principal gives to the appointed agent.

Get Your FREE Guide to Planning Your Inheritance in Italy

Our PDF guide explains the ins and outs of preparing your inheritance under Italian law

Download now

What are the currently existing types of “Procura”?

1. In case of a “Procura Speciale” (Special Power of Attorney), the principal can give limited powers to the attorney/agent. If, for instance, you are purchasing an estate in Italy. However, you cannot be on-site on the day to sign the deed. You can bestow the power to sign such deed on your attorney/agent.

2. A General Power of Attorney (Procura Generale) entitles your agent to do almost anything you could do.

In what circumstances can you revoke a Procura?

Both Procura Special and Procura Generale terminate if the principal dies or becomes legally “incapable”. However, if necessary, you can terminate it at any time. This is done by means of the same legal document used to confer it.

What should I consider before appointing an agent/attorney?

If you are considering granting a procura, you should be extremely careful about whom you chose as an agent/attorney. You are delegating the very management of your affairs to someone else. Hence, it is extremely important that you entrust a reliable and competent person with this delicate task, preferably a professional. Conferring Power of Attorney to someone who does not have enough experience or that you might have a conflict of interest with is not advisable.

What are the legal requirements to issue a power of attorney?

A Procura is a formal document with many legal requirements.
Generally, the competent authorities carefully examine it before releasing it. The agent will need to sign the Procura in their home country in the presence of a public officer. 
The USA, UK and Australia have signed The Hague Convention of 5th October 1961. This abolished the Requirement of Legalisation for Foreign Public Documents. In any case, an Apostille Certificate or Stamp, also known as the Hague Apostille, is required as proof of authenticity. Ensure to check the pertinent procedures with the UK Foreign and Commonwealth Office, the US Department of State and the Australian Department of Foreign Affairs and Trade.

Finally…

A Power of Attorney is a very delicate matter. You are granting your rights and the handling of your affairs to someone else. Make sure to seek the help of a professional before drawing up a Procura.

Contact us today. We can help.

You may also be interested in Power of Attorney in Italy