ABSTRACT: According to the Italian Corte di Cassazione, a person called to the inheritance who is in possession of the hereditary assets may not renounce the inheritance if he has not drawn up an inventory within the period prescribed by law.
The person “called to the inheritance” in the Italian legal system
In the Italian legal system, the person “called to the inheritance” by law or by will (hereinafter also referred to as “the called party”) has the right to accept (or renounce) the inheritance but does not automatically become heir on the death of the deceased.
It is only by accepting the inheritance that the called party formally acquires the status of heir and becomes the owner of the deceased’s assets and rights.
In other words, when the heir accepts the inheritance, they acquires the assets of the deceased (credits and rights) and their liabilities (debts) retroactively, i.e. from the “opening of the succession”, which is the moment of the death of the deceased.
Under the Italian law, the waiver of the inheritance is also retroactive. A person who renounces the inheritance is deemed as if they had never been called upon to inherit.
Acceptance of the inheritance: form and effects
In the Italian legal system, acceptance of the inheritance (also called “acceptance of the succession”) may be “pure and simple” or “with the benefit of inventory”.
The inventory ascertains the economic and financial situation of the estate. Through the inventory, the called party may know the ‘substance’ of the estate, i.e. whether there are more credits or debts of the deceased, even before becoming an heir.
“Pure and simple acceptance” entails the confusion of the deceased’s assets with those of the heir and gives rise to a single estate. The “pure and simple heir” is required to pay the debts of the deceased even if they exceed the value of the inherited property.
On the other hand, “acceptance with the benefit of inventory” keeps the deceased’s assets separate from those of the heir. Consequently, an heir who has accepted the inheritance with the benefit of inventory is not required to pay the debts of the deceased beyond the value of the inherited assets.
With reference to the form of acceptance of the succession, the Italian Civil Code provides for that it may be express or tacit.
Express acceptance consists of a formal and unconditional declaration of acceptance of the inheritance or of assumption of the capacity of the heir, made by the called party in a public deed or in a private writing.
Acceptance is tacit when the called party performs an act that necessarily implies its will to accept and that it would not otherwise be entitled to perform (e.g. the sale of the deceased’s property).
Possession of the heritable property by the called party
Italian law provides for a further particular form of acceptance of the inheritance, which may be independent of the actual will of the called party to accept the inheritance.
Article 485 of the Italian Civil Code provides for that when the called party is for any reason in possession of the heritable property, it shall make an inventory within three months of the opening of the succession or of the time when it became aware of the offer of the estate in its favour.
Once this period has elapsed (unless it is extended by the court) without having made an inventory of the estate, the called party becomes a “pure and simple heir”.
“Pure and simple acceptance” also occurs when the called party has made an inventory without declaring within the next forty days whether it intends to accept or renounce the inheritance.
Thus, Article 485 of the Italian Civil Code provides for a mode of “legal” or “presumed” acceptance of the inheritance which takes place automatically when the conditions provided for by the law are met, independently of (and sometimes even against) the will of the called party.
According to case-law[1], for the purposes of presumptive acceptance of inheritance, failure to complete the inventory within the statutory time limit or declaration of acceptance (or waiver) of inheritance is not sufficient. It is also necessary for the called party to be in possession of the heritable property, i.e. to have the physical availability of even one of the assets included in the estate. Moreover, the called party must be aware that such property belongs to the estate and that it is a “person called to inheritance”.
Judgment no. 36080/2021 of the Italian Corte di Cassazione: the obligation to make an inventory also applies in the event of a waiver of inheritance
In its recent judgment no. 36080 of 23 November 2021, the Italian Corte di Cassazione held that the called party who is in possession of the hereditary property is required to draw up an inventory of the estate even if it intends to renounce the inheritance.
According to the Court, in the case of possession of the heritable property, the waiver of the inheritance is not valid and effective if no inventory has been made within the prescribed period.
In other words, the called party who is in possession of the heritable property may only renounce the inheritance if it makes an inventory within three months.
After this period has elapsed without an inventory having been made, the called party cannot renounce the inheritance and becomes an “heir pure and simple”.
As a result, it becomes liable for the debts of the deceased even beyond the limit of the estate, notwithstanding any contrary wish to renounce the inheritance.
The Italian Corte di Cassazione finally held that “possession of the heritable property” is presumed if the person called to inheritance has established their domicile in the same domicile as the deceased.
Consequently, the cohabitation of the called party in the same house as the deceased (e.g. the spouse or the son who lives in the deceased’s house) would satisfy the requirement of Article 485 of the Italian Civil Code and give rise to a presumed acceptance of the inheritance.
Conclusions
The judgement of the Corte di Cassazione is aimed to guarantee the integrity of the estate and the protection of third parties «by preventing third parties from assuming, on seeing the person called upon to inherit in possession for some time, that the estate has been accepted purely and simply[2]».
In contrast to the ‘broad’ protection afforded to third parties, however, the called party is instead saddled with a considerable and unjustified burden merely because it is in possession of inherited property.
Indeed, it should be considered that the drawing up of the inventory is often a complex operation entailing considerable costs and expenses, which would certainly not be justified if the called party intends to renounce the inheritance.
In doubtful cases, alternative means of succession planning and wealth management could be advisable.
[1] See also: Italian Corte di Cassazione. no. 4456/2019; Italian Corte di Cassazione no. 5152/2012; Italian Corte di Cassazione no.11018/2008; Italian Corte di Cassazione no. 4707/1994; Italian Corte di Cassazione no. 4835/1980.
[2] See: Italian Corte di Cassazione no. 4845/2003.
Photo: Les roulottes, campement de bohémiens, 1888, Vincent Van Gogh – Wikimedia Commons
