How does the partition of an Italian Estate work?
A testator’s estate is composed of assets and rights. If more than one heir is nominated in a Will, a condition of joint-ownership of rights and duties concerning the inheritance needs to be established among co-heirs.
The co-heirs receive the estate in accordance with their inheritance quota.
This may either be apportioned by the testator’s Will or in accordance with the law and the beneficiaries acquire any assets due and/or take on the liabilities of the testator.
Partition of an estate refers to the division of the total assets, or liabilities, between beneficiaries.
It should be noted that each co-heir has the right to request the partition of an estate at any time following the testator’s death, unless otherwise stipulated by the testator in their Will.
All co-heirs, or their successors (legatees), must take part in the partition. Failure of one or more beneficiaries to participate in the partition, renders their rights invalid and this cannot be rectified later by absent co-heirs.
According to Italian legislation, the partition of an estate can be executed through three methods:
- Amicable (bargaining) partition
- Judicial partition
- Testamentary 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 courts. A judgment of how the partition of the estate will be determined by:
- Inventory OF THE INHERITED ESTATE:
including the assets which have been gifted to the co-heirs by the deceased.
- APPRAISAL OF 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.
- Inventory OF PORTIONS DUE TO EAch HEIR:
which are as many as the co-owners in proportion to the respective quotas.
- AD HOC:
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 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 could be that the effective value of a testator’s assets does not cover the quotas stipulated in a Will. Again, where co-heirs dispute the partition of an estate, they 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 can assist you and will work in your best interests.
You may also beinterested in Accepting an inheritance with the benefit of inventory in Italy