Inheritance Law
Inheritance Law is a key branch of Civil Law and regulates the posthumous distribution of a person’s property.
The person is free to distribute his property as he wishes: the same importance that the legislator gives to the will of the person for legal actions that manifest their validity while he is alive, he also gives to the will he expresses by wanting to determine the persons to whom his property will be transferred when it will no longer be possible for him to enjoy it.
The existence of an autobiographical will – this is more often found, as more economical than a notarial – will, seems to make clear the settlement of issues related to what will happen in relation to the testator’s property. However, the reality is quite far from this finding.
Precisely because we are talking about property, many times the desire of certain persons, justified or not, to challenge the legal effects which the will seeks to bring about and start a legal dispute will intrude. A person wishing to challenge the validity of a will will not face particular difficulties in finding a way to do so:
Defamation of the will as a forgery: it is possible to challenge the very fact of the will being drawn up by the (alleged) testator.
Attacking the testator’s true intention to make the will in question: in this case, the attacker questions the seriousness of the will of the testator to make a will (lack of animus testandi). A challenge is made, in other words, as to whether a text – otherwise and prima facie, a text meeting the necessary elements of a will – will be the one that will determine the distribution of the deceased’s property. For example, the messy writing and sloppy appearance of a will will be a serious indication of a lack of real will to make a will, depending of course on the particular circumstances and special conditions of each specific case.
As in any legal action, questioning the legal capacity of the testator remains a fundamental reason for denying the legal consequences of the will expressed in the will. Related is also the case of the manifestation of a will by a testator who is otherwise legally competent, but defective due to mistake, fraud or threat. The content of a will was not what was originally intended by the testator, but either he was deceived and wrote others instead of those whose imprint he wanted, or he was deceived, or he drew up the will in the midst of some threat which did not allow him to give a different one, namely that which he really desired himself, contained in the will.
Infringement of legal destiny: already, it has been established that the testator can distribute his property in any way he wishes. After all, a basic principle of civil law, a basic branch of which is inheritance law, is respect for the will of the legatee. It would be useless if this principle did not follow the last will of the person, when he distributes the whole of his property. This is because it is an oxymoron to reserve full respect and greater protection to the will of the person in his private dealings throughout his life, and still not be able to determine freely as he wishes the distribution of all the assets which he acquired while alive.
Exceptionally, however, and for the sake of the constitutionally protected institution of the family, the legislator foresees an obligation of the testator to leave a minimum percentage of his property to his relatives. If he violates this obligation, then he is said to offend the legitimate destiny of each of these persons. The protection of the institution of the family, therefore, comes to pose obstacles to the absolute respect of the will of the testator and to establish, with regard to a certain percentage of the total property, a “forced succession” for the sake of a specific circle of persons, the “family” of the disposer. In this balancing, in the “controversy” between the absolute respect of the will of the testator and the protection of the institution of the family, the solution of a mutual retreat was advanced, so that finally both elements coexist (“principle of practical harmonization”): the will of the testator is only partially not respected, so that a minimum of property is attributed to his family, due to its weighty importance.
Equally common is the case where there is a will, however, it does not provide for the distribution of certain assets, it only refers to some of them. This is the problem that arises when the will does not exhaust “the lot”. In that case, the bequeathed (that is, the one who was honored by the testator, the testator including his name in the will) will fight for the inclusion (in the will) of the undistributed property, while the intestate and non-bequeathed heir will attempt to support the view that as to the undistributed, intestate succession is fit to leave. To support one or the other point of view, an overview of the will of the testator and a jurisprudential research on the solution given by the courts in respective cases will be crucial.
After dealing with the above issues that may arise – even if such do not arise – there follows a procedure of formalities and formal details necessary for the entry of the inherited elements into the property of the heir(s). It is required that these actions be completed with care and absolute formality, so that the person concerned does not find himself in front of unpleasant surprises in the future.
As is the case with any transfer of property, in inheritance, issues of tax law will often arise, which each time should be carefully examined so that, on the one hand, they are processed legally, and on the other hand, special emphasis and diligence are given to the maximum cost savings for the heir, taking advantage of all the beneficial provisions that will be made available to the legal advisor each time.
The law firm provides legal support in all of the above issues, which it knows well, in order to provide effective support to both the defender and the attacker. Indicatively, we provide support in the process of declarations of acceptance of inheritances, the issuance of a certificate of inheritance, the publication of wills as well as the exercise and defense of lawsuits regarding inheritance, annulment of a will, infringement of legal destiny, etc. In addition, we undertake the processing of cross-border cases of inheritance law with inherited property in foreign/domestic (immovable and/or movable – bank accounts, etc.). Cases in which a joint account with co-beneficiaries, the deceased and other persons are involved, as well as the conditions under which it has been agreed to open, also require delicate handling and great diligence since the distance that separates vindication from legal defeat is very small and is usually based on details.
Finally, we manage the settlement of tax issues on inherited property, ensuring that the heirs will take all the necessary actions, on the one hand, for the legality of the process, and on the other hand, for the utilization of those exemptions – more or less known – provided by the tax legislator from time to time.
Some of the above weapons will usually be absent from the aggressor’s quiver when it comes to a public will (notarial), which is highly formal, detailed and usually leaves no room for questioning its will and content. However, this very formality of the public will, its advantage as it was just hinted at, is also its main weakness: such formality and detail are required in order for such a will to be considered valid, so that it is possible to find formal defects capable of ultimately leading to in its invalidity.
When, in the absence of some kind of will, the institution of intestate succession is called upon to regulate the distribution of the property left behind by the deceased person, new possible issues are added to be resolved.
It is not rare, moreover, for the unexpected appearance of “testaments”, either unique or subsequent to the one that has already appeared, which will usually favor the one who brought them to the surface. Highly qualified graphologists with whom we work have contributed significantly to the resolution of such cases, effectively supporting our legal arguments.