Contrary to popular opinion, succession law concerns our life rather than our death.
We offer comprehensive succession advice, from succession planning and the drafting of testamentary dispositions and donations, the verification of statutory rights, through to the liquidation of the estate, with consideration of inheritance tax issues, and with a particular focus on international succession cases in application of Italian and German inheritance law, as well as European Regulation 650/2012 on inheritance law and other bilateral and multilateral agreements with other states.
We advise and assist our clients in the choice of the appropriate instrument (e.g. donations for the transfer of assets during life, handwritten or notarized will, joint will, contract of inheritance) and in the drafting and formulation of testamentary dispositions, if necessary up to the filing of the will with the court (in Germany) or a notary (in Italy). The choice of the appropriate form of will can be decisive for the realisation of the testator's wishes, especially if the succession has international elements.
If the debts of the estate exceed the assets, a waiver of inheritance is possible before the court or before a notary. In addition, a waiver of inheritance may be motivated by the wish to avoid participation in a community of inheritance with undesirable persons or to direct the acquisition of the inheritance to the younger generation.
For the purposes of settling the estate and exercising the rights of the deceased, e.g. vis-à-vis credit institutions or for registration in land registers, certification of the rights to the estate may be required by means of a European Certificate of Succession under the European Succession Regulation (No 650/2012) or (in Germany) a certificate of inheritance. The international jurisdiction for issuing the certificate is generally determined by the last habitual residence of the deceased.
Our activity can be particularly complex when, due to disinheritance or transfer of assets during life, there is a need to verify the legitimate rights or additional legitimate rights and, if necessary, to bring them in court against the heirs or donees, or vice versa, to resist in court in the interest of the latter. The legitimator's legal action is normally preceded by a request for an inventory, drawn up by the heir or a notary, of the hereditary assets with valuation, in order to be able to quantify the amount to which he is entitled.
The community of heirs is destined to be dissolved, although it is not uncommon to observe co-heirs managing the inherited property or part of it for years in a surprisingly effective manner and without dispute. However, we are usually in charge of accompanying the coheirs in a contractual division, taking into account collations and compensation, or, if necessary, of reaching a division in court against recalcitrant coheirs.
We represent our clients before courts and mediation bodies in Italy and Germany. Mediation can be a valid procedure for resolving disputes as an alternative to court proceedings. In particular in Italy, mediation is a compulsory condition for legal proceedings.
A correct strategy in both succession planning and settlement plays an important role in avoiding or reducing the burden of inheritance tax, especially if the estate has an international component due to the location of assets and/or parties involved in different countries. We prepare and file inheritance tax declarations in Germany and Italy, check the taxes assessed and, if necessary, take legal action against them.
It should be borne in mind that Italian inheritance law, which is characterised by the principle of the freedom of the testator's will, prohibits reciprocal settlements and contracts of inheritance.
We represent clients in obtaining European certificates of succession in Italy, which are issued in Italy by notaries and not by the courts. As this is not subject to any local jurisdiction rules, we are able to obtain the European Certificate of Succession quickly thanks to the constant collaboration with specialised notaries.
Italian law provides for a - from a German point of view extraordinarily long - period of ten years for the renounce of the inheritance. However, if inherited property is already in the possession of the potential heirs, it is imperative to note that he (or she) has three months to renounce to the inheritance or to prepare an inventory of the estate to limit liability, otherwise he (or she) will be considered to be the heir in full.
The same period of ten years also applies to acceptance of inheritance, although this can also be implied. Anyone who has an interest in the person appointed to accept the inheritance making a decision can request that the court set a time limit for acceptance of the inheritance. In this case , the failure to meet the deadline is deemed to be a renounce of the inheritance.
The protection of beneficiaries of the compulsory portion (spouse, children or descendants and, in the absence of children and descendants, parents) is particularly pronounced in Italian law: they can actually receive the part of the estate assets reserved for them by law (and not "only" the corresponding value as a sum of money) by means of a court decision. It is not uncommon for the quotas of the compulsory portion to exceed half of the total assets. In addition, the spouse receives a lifelong right to live in the marital home and a lifelong right to use the furnishings of the home as a statutory advance bequest.
We represent our clients in compulsory portion proceedings as well as in any subsequent actions for the division of inheritance. Italian law provides for a limitation period of ten years for the assertion of compulsory portion claims.
In Italy, too, the best way to settle an inheritance is by mutual agreement through a notarial deed. If this is not possible, an agreement between the co-heirs must be sought in mediation proceedings, in which the parties must be represented by lawyers. If the mediation is also unsuccessful, an action for judicial partition may be brought, in which the co-heirs may request the allocation of non-indivisible property, otherwise it will be disposed of by auction.
In Italy, the filing of the inheritance tax return (dichiarazione di successione) has been carried out for years exclusively electronically with a request for rectification of the real estate cadastre, and the process is usually completed in a few weeks. The inheritance tax return must be submitted within one year. The inheritance tax amounts to a maximum of 8 % and provides for tax allowances for children and spouses or registered partners of € 1,000,000 and for siblings of € 100,000.
In Italy, we represent our clients in proceedings of voluntary jurisdiction, e.g. for the deposit and registration of inheritance distributions in the register of estates or for the judicial fixing of a time limit for acceptance of an inheritance. In contentious proceedings, a large part of our judicial activity is mostly sought in actions for the division of an estate, actions for a compulsory portion and actions for the determination of heirs. Our lawyers are also admitted to the Italian Court of Cassation in Rome, in order to ensure the enforcement of our clients' interests also in the third instance with regard to the correct application of the law and the review of possible procedural defects of the previous instances.
German law recognises the validity of agreements as to succession and joint wills between spouses or persons in a civil partnership and makes it possible - by means of institutions such as antecedent and subsequent inheritance (Vorerbschaft - Nacherbschaft) and the execution of wills, which is characterised by very wide-ranging powers of action - to shape the succession of one's assets decisively and for several generations.
German law provides that the acquisition of the inheritance takes place directly upon death, subject to the right to renounce. In general, therefore, acceptance is effected by way of legal fiction at the expiry of the time limit for renunciation, which is very short compared to Italian law: six weeks or six months if the testator or heir is abroad. The time limit runs from knowledge of the death and of the call. Acceptance may also be by express declaration.
In Germany the issuing of certificates of inheritance (Erbscheine) and European certificates of inheritance is the responsibility of the local court (Amtsgericht) acting as a probate judge (Nachlassgericht) in a voluntary adversarial procedure with potential claimants. The costs of the procedure depend on the value of the estate. Although it is a voluntary procedure, most disputes between purported heirs are resolved in such proceedings. We regularly represent clients in such proceedings throughout Germany.
Under German law, the beneficiaries (spouse, children or grandchildren in the direct line, and in the absence of descendants, the parents) are entitled to a monetary claim against the heir(s), calculated on the basis of the value of the assets, which does not therefore entail the acquisition of a share in the assets of the estate or participation in the community of property. The contentious legal action by which the satisfaction of this right is sought is generally brought in stages, the first of which involves an order to draw up an inventory with the valuation of the assets, possibly an order to declare their accuracy on oath, and finally an order to pay the resulting amount. The three-year limitation period must be observed. We assist in court both pretermitted legitimates and heirs who are faced with claims for payment of legitimacy. Prior to the proceedings, we order the heir to draw up a private inventory - with our participation - or to appoint a notary.
German law provides that the dissolution of the community of inheritance in respect of immovable property is effected by forced sale of the property by the execution judge in a procedure similar to that of expropriation on the initiative of a creditor. The co-heirs will then have to agree on the division of the price obtained. Dissolution is then pursued by means of a court action for the approval of a plan for the division of the estate's assets. According to case law, dissolution may be effected, even if only in respect of one of the co-heirs, by means of a free form agreement (Abschichtung) (even if the succession concerns immovable property) providing that he shall cease to be a member of the community in return for payment, which need not necessarily consist of an inheritance asset.
We represent our clients in Germany both in proceedings of voluntary jurisdiction - for obtaining certificates of inheritance and European inheritance, certificate of executor, curatorship of the estate and management, as well as insolvency of the estate - and in contentious proceedings - for ascertaining the rights to inheritance, ordering the payment of the amount due for the reserved portion etc.
In Germany, for inheritance tax purposes, it is initially sufficient to notify the tax office (Finanzamt) within three months of the acquisition of the property. The tax office can then request the heir to submit an inheritance tax declaration by setting a deadline.
We can make the necessary preparation in cooperation with trusted notaries in Germany and Italy to obtain the execution of the transfer - contract of sale or deed of gift - without the clients having to travel to Italy.
The bank must be provided with an affidavit of succession and, if applicable, a certified copy of the will with the opening protocol, as well as confirmation from the Italian tax office that the inheritance tax declaration of the balances has been filed, as well as concurring payment instructions from all heirs. The inheritance tax declaration is not required if the wife and children are legal heirs and the assets are less than €100,000 and there is no real estate in the estate.
Firstly, the division can be achieved by means of a division agreement, otherwise the parties can instruct a notary to carry out the division. Relatively often, the division succeeds in a compulsory mediation procedure, in which the parties must be represented by lawyers. Finally, the judicial route is available.
In the case of both sales and donations, we can prepare the necessary arrangements in cooperation with notaries in Italy and Germany to carry out the transfer without our clients having to travel to Germany.
It is necessary to prove one's inheritance rights by means of a published will, a certificate of inheritance or a European certificate of inheritance, and to declare the purchase to the tax authorities, who will issue a clearance. Some banks also ask for identification of the heir by means of a certified copy of an identity document.
The division may take place by agreement between the heirs, or by forced sale of the individual assets, until a divisible estate is created for which a division plan can be submitted to the court for approval.
Let us talk about your specific concerns.