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Residence in a “Common Law” State of the testator or heirs.
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, however, succession indicates and specifies the taking over a subject, successor, or assignee to another, called testator or assignor, in a particular legal situation.
The notion of succession seems simple on the surface since it suggests that a legal situation remains unchanged when the persons to whom it pertains, on the other hand, change. In reality, its meaning passes through a more complicated interpretation. It is enough for a single element of this situation to change, even if relating only to the person, for the legal position to be abstractly different. In contrast, on the practical level, the situation is identical: which is to say that the successor is in the same concrete position in which the author was.
Furthermore, in some legal positions, the individual has no role. These are some cases where the legal situation does not belong to anyone. Some legal models without beneficiaries are also provided for by law. For example, in the case of inheritance lying in the broad sense, in which various moments can be indicated that the law considers with precision, such as the one in which it contemplates the powers of the person the inheritance is offered before he accepts it, referred to in Article 460 of the Italian Civil Code; the one providing for the administration of the suspensively conditioned legacy or intended for the yet unborn, referred to in Articles 641 and 643 of the Italian Civil Code; or the juridical situations relating to the existing estate in the strict sense, under Articles 528 and following of the Italian Civil Code.
Succession, therefore, is neither an extinction nor a constitutive event of juridical situations but only creates a change on a personal level of one or more juridical relationships that arise from the succession.
It follows that, while as a result of succession, there is the takeover of a different subject in the same juridical position of another individual, the same effect does not occur in those events in which a subject is entitled to replace himself only in the exercise of a single right without become its owner. This is the case, for example, of a “subrogation” right practice by a creditor who has taken steps to be legitimized to do so, as provided for by Article 2900 of the Italian Civil Code.
A fundamental conclusion can now be drawn according to which succession is a way of acquiring derived rights.
A traditional distinction divides succession between living (inter vivos), succession “mortis causa,” and that of a singular or universal inheritance.
Intuitively, the first two categories include those that prescind or not from the death of the subject from whom the relationship is derived. Succession due to death necessarily presupposes the event of death. The other two categories concern, respectively, the person who takes over a single right or a particular relationship or in a legacy and the person who, on the other hand, succeeds another in the totality or an ideal portion of his property relationships considered as a complex, universal entity.
Having made these temporary premises, we can now take note of the other traditional interpretative light according to which succession should never be confused with the transfer of ownership. Succession is, in fact, more comprehensive and is independent of a transferring act, as happens in legitimate inheritance, that is, that of a normative basis and not emanating from testamentary dispositions of the last will.
The transfer of ownership only contemplates the taking over of a person in the active position where the succession allows it both in the active one (as in the case of the assignment of a credit, for example) and in the active and passive one together (as in the case of succession due to death) or only in the passive position (as in the cases of takeover in the debt figures called delegation of debt, Expromission of the debt, and assumption of debt).
We can finally understand plainly what is meant by property and by possession. Indeed, the latter can never be transferred. Instead, it may be included in a succession. Even in the law, we find confirmation of the difference between succession and transfer of ownership by reading Article 1146 of the Italian Civil Code, which establishes that the possession “continues” in the heir while the legatee (who is not an heir) 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 is that of the juridical relationships in the formation phase, which can be understood, together with those already concluded, in the inheritance. For example, the heir can accept a contract proposal not yet completed made by the “deceased” if it does not lose effectiveness, as provided for by Articles 1329, paragraph 2, and 1330 of the Italian Civil Code; he can accept the inheritance that would have been due to the “deceased,” in turn, if he had taken it, as provided for by Article 479, paragraph 1, of the Italian Civil Code; he can ratify a contract made in the name of the “deceased” by a representative without powers, 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 purchase. 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) and admixture (in law there is admixture when several things 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 full owner establishes a usufruct. This would happen because, together with the broader right, the individual positions are also transferred as attributions of patrimonial powers due to the full owner.
In-depth study of Private International Law on “Civil Law” and “Common Law” about WILLS and LEGITIMATE QUOTA.
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.
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, therefore, 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, and excludes his heirs from testamentary attributions, the latter could not enjoy the guarantees established by the Italian legal system regarding 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 be applicable for 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 provides for the protection of family solidarity to be overcome, ending up with 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.
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, from time to time, weighted, taking into account the subjective motivations and the fact that contemptuous behaviors of the value of family solidarity can see both the heirs and the testators as protagonists.
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.
The intangibility of a fair quota is not shared by all developed countries, 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.
The complexity of the problem of the legitimate quota, however, 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 which 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.
This provision, however, 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.
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