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Words often have different meanings depending on whether they are used in everyday speech or legal language.
The word succession in common parlance indicates the succession of specific facts or events over time.
In the technical-legal meaning, succession specifically indicates the taking over of a subject to another.
In a particular legal situation, they are the successor and the testator. Name them as assignee and assignor as well.
The succession notion seems simple while suggesting a legal situation remains unchanged when the persons to whom it pertains change.
In reality, its meaning passes through a more complicated interpretation.
As long as a single element of this situation changes, the legal position differs abstractly. Even if relating only to the person.
In contrast, the situation is identical: which is to say that the successor is in the same concrete position as the author.
Furthermore, in some legal positions, the individual has no role.
There is when a “legal situation” does not belong to anyone.
Some legal models without beneficiaries are also provided for by law.
The inheritance lying in the broad sense is an example. Here, various moments can be indicated that the law considers relevant, as follows.
- As to the person’s powers, the inheritance is offered before he accepts it: Article 460 of the Italian Civil Code.
- As to the suspensively conditioned legacy managing or intended for the yet unborn: Articles 641 and 643 of the Italian Civil Code.
- As to juridical situations relating to the existing (pending) estate in the strict sense: Articles 528 and following of the Italian Civil Code.
As a result, succession is neither an extinction nor a constitutive event of new statuses. A change on a personal level of one or more juridical relationships that arise from the succession comes to light only.
Consequently, there is a subject’s takeover in another’s status due to succession. The same effect does not occur in events where a subject is entitled to replace himself only, exercising a single right without becoming the owner.
In the same way, a “subrogation.” A proper practice by a creditor who has taken legal action to do so, according to Article 2900 of the Italian Civil Code.
A fundamental conclusion can now be drawn: Succession is a way of acquiring derived rights.
Traditionally, a distinction divides succession “inter vivos,” line “mortis causa,” and a singular or universal inheritance succession.
Intuitively, the first two categories include those prescinding or not from the person’s death from whom the relationship derives.
Succession due to death necessarily presupposes that event.
The remaining two categories concern what follows. A person who takes over a single right, relationship, or legacy. That one who succeeds another in the totality or an ideal portion of his property relationships. Here, a complex, universal entity is the inheritance.
With these premises, we can now take note of the other traditional interpretative light: Succession should never be confused with the transfer of ownership.
Succession is, in fact, more comprehensive, independent of a transferring act. As it happens in legitimate inheritance, that is, that of a normative basis. Not emanating from last will testamentary dispositions.
The ownership’s transfer contemplates just a person’s taking over in the active position, whereas succession allows both.
For instance, in the active one (assignment of credit) and the active and passive ones together (succession due to death).
Again, just in the inactive position (takeover in the debt figures called delegation of debt, Expromission of the debt, and assumption of debt).
We can finally understand what is meant by “property” and “possession.”
Indeed, the latter can never be transferred. Instead, it may be included in a succession.
Moreover, succession and ownership transfer appear different by reading Article 1146 of the Italian Civil Code.
It establishes that the possession “continues” in the heir. Not so, can the legatee (who is not an heir). This one can only “join” his custody to that of his deceased assignor or testator.
Another clue to understanding whether we are in the field of “succession” or “transfer.”
“Juridical relationships in the formation phase” can be included in those already concluded in the inheritance.
Here are some options.
- The heir accepts a contract proposal not yet completed by the “deceased” if it remains effective, as provided by Articles 1329, Paragraph 2, and 1330 of the Italian Civil Code.
- He accepts the inheritance that would have been due to the “deceased.” Provided that he had taken it, in turn, as provided for by Article 479, paragraph 1 of the Italian Civil Code.
- He ratifies a contract in the name of the “deceased” by a powerless representative, as provided for by Article 1399, paragraph 5, of the Italian Civil Code.
These latter things cannot be contemplated as the object of a transfer.
Furthermore, the term succession always implies a derivative acquisition.
However, a purchase does not always presuppose succession.
There can be a purchase, but not a succession, with an original acquisition: as in the cases corresponding to the legal issues of:
occupation and invention (relating to things respectively either found abandoned and in the wild or things that were lost),
accession (when a movable property becomes part of a real estate),
union (this means material joining between two mobile things that do not lose their individuality),
admixture (in law, there is admixture when several properties belonging to different owners have been mixed in such a way as to form a single whole),
and usucaption (method of acquiring ownership or another real estate right of enjoyment over the thing, through the possession of this for a period established by law).
Moreover, it is still debated today that the great concept of succession can also include a completely new relationship from a previous and connected one:
As in the case in which the owner with full rights establishes a usufruct, this would happen because, together with the broader freedom, the individual positions are also transferred as attributions of patrimonial powers due to the owner’s full rights.
In-depth study of Private International Law on “Civil Law” and “Common Law” about WILLS and LEGITIMATE quotas.
On a comparative law level, we wanted to highlight in this written text the provisions of Article 46, paragraph 2, of the Law of the Italian Parliament no. 218 of 1995.
In his will, the subject who owns the inheritance can also include provisions of a non-patrimonial nature.
He can submit, for example, the entire succession to the law of the State in which he resides with a declaration expressed in testamentary form.
This provision will take effect after the declarant’s death. But what happens if he no longer lives in that State?
The answer is that the choice made in that will is no longer valid.
No coincidence, these choices are not insignificant when one considers the diversity of principles that inform the “Civil Law” and “Common Law” systems, given that, traditionally, in the first legal system, the principles lean towards protecting family solidarity.
At the same time, the need to respect the testator’s will is considered preponderant (with significant consequences for the rights of the legitimate heirs).
If the citizen of a State of “Civil Law,” such as Italy, resides in a State of “Common Law,” such as the United States of America, it may happen that:
He excludes his heirs from testamentary attributions.
The latter could not enjoy the guarantees established by the Italian legal system.
They will fall short of getting the share of the inheritance that the law reserves for the legitimate heirs, provided that he resides there at the time of his death, after which his will can be read.
But to mitigate the possible adverse effects such a provision would cause to the heirs affected by such a will.
The Italian Legislator has foreseen that if the heirs excluded from the testamentary declarations discussed in this text are resident in Italy, Italian laws will apply to them.
Consequently, it is necessary to consider the place of residence of the heirs of this testator, who, if they were Italian citizens at the time of the former’s death, could take action and render ineffective the provisions affecting their reserve quota.
There was no lack of criticism from those who consider the system that protects family solidarity to be overcome.
On the contrary, they object to the safety of the reserved quota without distinction even of those heirs undeserving of this protection, such as that heir who did not take care of the testator or had violent attitudes towards him, showing himself contemptuous of those same values inspired by the value of “family solidarity.”
Outlining the validity of testamentary disinheritance, at least in circumstances in which family solidarity is not reciprocal, given that it is not contemplated as a cause of unworthiness in those few mandatory clauses indicated by Italian law on unworthiness issues.
However, in this Lawyer’s opinion, this criticism is forced to deal with the Legislator’s will to limit the causes of unworthiness to extreme cases.
Even for a cultural fact, since we are dealing with norms of a moral nature, family solidarity is a concept that changes over time and should be weighted from time to time.
We should consider the subjective motivations and the fact that contemptuous behaviors regarding the value of family solidarity can see both the heirs and the testators as protagonists.
“Fair share” issue.
On the other hand, another problem connected to the one discussed above concerns establishing a fair share in the inheritance system, which guarantees the author’s heirs obtain a share selected by law in the “Civil Law” legal system.
In contrast, not all developed countries share the intangibility of “fair quota,” as in the countries of the Anglo-Saxon legal area.
Here, the regulations, as mentioned above, give more excellent value to the opposite principle of the absolute freedom of everyone to dispose of their inheritance after death.
Nevertheless, the complexity of the problem of the legitimate quota has made this traditional orientation subject to discussions and criticisms, which have also led this principle to undergo some derogations.
Also, in the United Kingdom, there have been rules that tend to mitigate the rigidity of these rules on the freedom of disposal of the testator, introducing the discretionary power of the judge to order patrimonial measures in favor of the deceased’s spouse to meet alimony needs, in application than established by the “Inheritance Provision for Family and Dependants Act” of 1975.
Lastly, this provision does not deal with the actual legitimate quota since the reserved quota is not established by law; it is instead a monetary amount set by the judge.
Italynlaw Law Firm Communications Office issued this article.
Image 10: Part of an edifice facade in Rome.