The tacit acceptance of the inheritance under Italian Law
According to Italian Law the inheritance must be expressly accepted.
However, tacit acceptance of inheritance can be inferred from acts and behaviours of the person called to be an heir, which is not only, for example, the submission of the declaration of succession with the Inland Revenue (Agenzia Delle Entrate) which a consistent recent case law determines to be not sufficient for the purpose of the assessment of the heir status since they refer to compliance within the context of the Italian tax scheme.
On the contrary, the change of ownership and relevant cadastral transfer of a property, from the deceased to the heir; or the withdrawal of money from the bank account in the name of the deceased are both relevant for the positive assessment of the heir status.
The declaration of succession, being an essentially fiscal act, does not prove the (tacit) acceptance of the inheritance that occurs when the person called to the inheritance performs an act that implies his will to accept and that he would not have the right to perform if not in the capacity of an heir. So much so that in the presence of proof of tacit acceptance, the succession report assumes a circumstantial value that becomes the object of evaluation and contributes, together with the other preliminary findings, to the heir status assessment. For the purposes of tacit acceptance of the inheritance, the overall behaviour of the potential heir must be assessed, with the consequence that all those acts which, based on their nature and purpose, are unfit to express in a certain and unequivocal way, the intention to accept the inheritance are considered as irrelevant. These documents include the declaration of succession, the payment of the related taxes, the request for registration of the will and its transcription. The above acts are considered mere compliance. The fundamental and indispensable prerequisites for the purposes of tacit acceptance are in fact represented by the intentional element of a subjective nature (so-called animus) and by the objective one, relating to the performance of an act that only those who hold the capacity of the heir would have the right to, therefore, only in the presence of such elements is it possible to identify unequivocal behaviour, which constitutes an expression of the will to accept. The assessment of the heir status is particularly relevant for the liability to pay any deceased’s debts towards third parties or the State. Anyone called to the inheritance who has expressly renounced it pursuant to art. 519 of the Italian Civil Code cannot be considered liable neither for the debts of the deceased nor for the inheritance taxes to be paid to the State. Unless he has put in place conduct from which to infer implicit acceptance of the inheritance, whose burden of proof lies with the Italian Tax Authority.
VGS Lawyers Probate’s Team would be more than happy to assist clients who need to renounce or to accept inheritance under Italian Law.
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