Comunione e divisione ereditaria
aggiornamento: 27 marzo 2020
Last updated on 27 March 2020 by the Italian Ministry of Justice
There is coparceny when the deceased is succeeded by several heirs, who become joint owners of the assets and joint owners of the rights and debts making up the estate. Therefore, if there are several heirs (e.g. children and spouse), each co-heir becomes a joint owner of a proportion of the deceased's assets and rights and obligations.
The proportions may be different as settled by the deceased in the testament; failing a testament reference must be made to the rules for intestate succession pursuant to Article 565 et seq. of the Italian Civil Code.
For example, if the deceased leaves a spouse and two children, failing a testament the shares in the estate shall be 1/3 for the spouse and 1/3 for each child.
Article 752 of the Italian Civil Code provides that the heirs are liable for the estate's liabilities in proportion to their shares in the estate, unless the testator has provided otherwise.
This means that in the above case of three co-heirs with equal shares of 1/3, each shall be obliged to pay 1/3 of the debt.
The rule in Article 752 of the Italian Civil Code only applies to the estate's liabilities.
This means that the estate's receivables may be received in their entirety by one of the heirs, but they are included nonetheless in the coparceny.
Possibility of transferring one's own share in the estate
The law provides for a right of pre-emption, that is to say a right of priority for the other co-heirs.
Article 732 provides hat a co-heir who intends to transfer his own share (or part of it) to an outsider must notify the other co-heirs of the proposal to transfer with indication of the price; the other co-heirs can assert their willingness to acquire the share in priority to an outsider.
The coparceny is dissolved through a procedure of division that permits the co-heir to become the sole owner of the assets assigned to him and of which the value corresponds to the value of his share in the estate. Different types of estate division can be distinguished.
This occurs when the co-heirs agree on carrying out the division and on its contents; in this case the division is carried out through an agreement between the co-heirs which is termed a contract of division. The contract of division must be agreed between all the co-heirs on pain of nullity.
If it concerns real estate or other rights in immovable property (e.g. usufruct), it must be in writing, authenticated by a notary, and registered. The judge's authorisation is required if an incapacitated subject (such as a minor or disabled person) is involved.
This occurs when the co-heirs do not succeed in coming to an agreement; in which case they must apply to the judge. The law provides for two types of procedure.
Division by joint application
It assumes that the co-heirs agree on dividing the deceased's estate and on their respective shares but not on the assets of which each of their respective shares are to consist. It is a simplified procedure that makes it possible to pass directly to forming shares or portions to be assigned as each co-heir's exclusive property.
It is initiated with a single petition undersigned by all the co-heirs lodged with the clerk's office of the Court where the succession was opened (in other words, the place of the deceased's last residence)
Ordinary judicial division
This is an ordinary civil procedure which can be started when the co-heirs do not agree on dividing the assets of which they are co-owners or do not agree on how to make the division.
The proceedings may be started by any of the co-heirs at the Court where the succession was opened; all the co-heirs must be convened. Before starting the proceedings it is also necessary to attempt mediation with a conciliation body recognised by the Ministry.
This occurs when the deceased has specified how the estate is to be divided among the co-heirs.
In particular, the testator:
- may specify particular rules for forming the portions due to each co-heir, e.g. by specifying that each portion should consist of a certain number of mobile or immobile assets;
- may provide that the division is made according to the estimation of a third party he has indicated, who is termed an arbitrator;
- may directly divide the assets comprising his estate among the co-heirs.
aggiornamento: 27 marzo 2020