This article predates a change in the law and is awaiting an update. For a specific case, the Firm should be consulted.
Machine translation awaiting review.
Succession upon death determines the sub-entry of one person into the ownership of another's entire estate, which has not been provided for, as a consequence of the owner's death.
There are two forms of succession:
The law reserves, with mandatory exceptions, a part of the inheritance defined as the legitimate share to the spouse, children, and ascendants of the deceased. The legitimate share varies depending on the number of persons entitled to inherit.
In accordance with EU Regulation 650/2012, the succession may be governed by the court of the last EU country in which the deceased lived or by a notary public in any EU country; unless the deceased has chosen for the succession to be governed by Italian law, Spanish law will apply.
The choice of the law applicable to the succession is of considerable importance in establishing the shares in the succession and for the division of the remaining estate. Italian law grants the legitimate heirs the untouchable right to a part of the inheritance (reserved share) regardless of any testamentary disposition. The spouse (who continues to have the right of residence in the matrimonial home) is entitled to ½ of the estate if participating in the succession alone, or 1/3 or ¼ of the estate if participating in the succession together with one or more children.
Spanish law establishes that the succession will be divided into three parts: the legitimate succession, which consists of one third of the entire succession reserved for the legitimate heirs, the third of improvement in favor of some of the legitimate heirs according to the will of the deceased, and the freely disposable part, which consists of the remaining third of the succession.
The heir may accept the inheritance outright and simply assume the entirety of the deceased's active and passive relationships, in which case the personal assets will be merged with the inherited assets. To avoid the merging of personal and inherited assets, which would mean answering with personal assets for inherited debts if these exceed the assets, the heir will have to accept the inheritance with benefit of inventory.
The alternative to a will is the testamentary trust, which allows for planning the generational transfer of wealth for the protection of particular needs, such as the protection of vulnerable individuals or the profitability of businesses. Indeed, there is the possibility for the de cuius to place assets in trust, a legal institution by virtue of which one or more persons, the settlors, transfer assets and rights under the availability of the trustee, who assumes the obligation to manage them in the interest of the beneficiary.
The trust enjoys tax benefits because the trustee has the advantage of ensuring a transfer of the inheritance under current tax conditions, while the beneficiaries, upon taking charge of the assets transferred to the trust, will no longer have to pay any tax.
