Rules for Succession
Who inherits with or without a will, legitimate heirs and heirs entitled to a portion, payment of debts left by the deceased: what you need to know.
To know exactly who will receive your assets when you have passed away, you need to understand the rules of inheritance. In this article, we will explain what happens after your death.
We will tell you specifically who can be designated as an heir, how your inheritance will be distributed with or without a will, how much each person is entitled to by law, and what your heirs need to do to obtain the assets you left behind, without forgetting their responsibility for paying any outstanding debts at the time of your death.
How is succession done?
Succession is formally opened at the time of the death of the so-called “de cuius,” which is the person who owned the assets that make up the inheritance.
There are three fundamental types of succession:
- Testamentary succession: when the testator, in dictating their last will, designates their heirs and decides to whom and in what proportions to leave their assets.
- Legitimate succession: when there is no will (or there is one but it does not dispose of the entire estate), the proportions to be allocated to each heir are directly determined by the law, based on the degree of relationship to the deceased.
- Compulsory succession: which reserves certain portions of the inheritance (not all) for certain close relatives, called legitimate heirs.
When do you become an heir?
The heir is the person who, upon the death of the de cuius, succeeds them in the entirety of the estate if they are the sole and universal heir, or only in a part if they are a co-heir. This part is predetermined by the legitimate shares or testamentary provisions, but it always refers to a portion of the entire estate, not to a specific asset (otherwise, they would be legatees, not heirs).
At the death of the de cuius, individuals are still simply “called to the inheritance,” therefore, only potential heirs and not yet effective ones. To become actual heirs, they must accept the inheritance; otherwise, they cannot receive the assets (and, in return, they do not have to pay the debts left by the deceased).
How is the inheritance accepted?
The inheritance can be accepted in three ways:
- Explicitly, through a public act or a private document received by a public official (such as a notary or the court clerk of the place where the succession was opened).
- Tacitly: it can be done by those who have possession of the inherited assets and dispose of them as if they were the owner (using them, selling them, renting them, donating them, etc.). It only requires behavior that unequivocally demonstrates the intention to accept the inheritance, without the need for a notary or another public official to intervene.
- With benefit of inventory: before accepting (or rejecting), an inventory of the assets is drawn up to know their nature, value, and whether there are any debts. Acceptance with the benefit of inventory requires a declaration received from a notary or the court clerk (thus, it cannot be done tacitly).
The first two methods we described constitute a “pure and simple” acceptance, without reservations. Acceptance with benefit of inventory is mandatory when the heir is a minor, incapacitated, or disabled, and in such cases, the authorization of the guardianship judge is also required.
Can you renounce the inheritance?
Those who do not wish to accept the inheritance can renounce it if they have not already accepted it explicitly or tacitly (acceptance, once occurred, is irrevocable). In this way, they will be excluded from the inheritance and will not be liable for any.
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