Why use an experienced Donation Lawyer and when should you consult him/her?

It is necessary to consult a Lawyer in the case of:

• Transfer of real or movableproperty of great value;
• Donations betweennon-directed relativesor to third parties;
• Successionplanning;
• Need to avoid future family litigation.

The complexity of the current regulations on donations, together with the possible risks associated with the use of this legal instrument, make it essential to have the assistance and advice of an experienced lawyer in this area. This is in order to support the client in the choices he or she will have to make..

Donation, unlike mortis causa succession, allows the donor to transfer - during his or her lifetime - assets or rights to a third party, ensuring that he or she can make the best decisions, regarding his or her assets and according to his or her wishes.

1) Requirements

Donation, being a formal act, requires precise legal requirements to be considered valid, namely:

• the capacity to act of the donor and donee;
• the public form of the deed, drawn up by a Notary Public and before witnesses,
• theacceptance of the donation by the donee.

2) Types of donations

Donation of movable property
Goods/objects of value, stocks, money, securities.

Donation of real estate
Transfer of ownership of real estate.

Donation with reservation of usufruct
Allows the donor to retain the right to use the donated property (e.g., the ability to continue living there).

Indirect donation - Wealth transfer through acts other than a direct gift

Act of liberality that achieves the effects of a gift(enrichment of one person and impoverishment of another), such as:

• purchase of a property in the name of the child ( parents pay the price of theproperty, but put it directly in the name of the child);
• wire transfer (transfer of money from one parent to the child, which is considered an indirect gift for tax purposes);
• mortgage waiver (a creditor waives amortgage on a debtor's property, enriching the debtor);
• assumption of another's debt.

Main features of Indirect Donation:

• lack of solemn form; in fact, the form of a public deed is not required, as for direct donation;
• liberal effectiveness, the act must still pursue a purpose of liberality, i.e. to gratuitously enrich another person;
• applicability of some donation rules, even if it is not a formal donation, some rules provided for donations apply, such as revocation for ingratitude or injury of legitimacy.

3) Difference between donation and succession

The legal institutions of donation and succession are closely related, as both allow people to be able to transfer their assets, but with substantial differences.
In fact, a donation made during one's lifetime can affect the succession of inheritance, especially with regard to the observance of the shares of legitimacy (parents/wife/husband/children).
Therefore, if a donation exceeds the limits of the available shares, the legitimated heirs will have the right to take legal action to request the reduction of the donation.
A relevant aspect is the so-called "Collation," the obligation for heirs to contribute to the estate any property or sums of money received in donation from the de cuius while he or she was still alive, as these are to be considered real advances of the inheritance share. This is with the intention of ensuring an equitable distribution of the estate among them.
Otherwise, if the donor, on the occasion of the donation has formally arranged for the so-called "Dispensation from Imputation," the donated property will constitute for the donee/heir an addition/supplement to the share of the legitimacy due to him. The Supreme Court has recently clarified that the donor may revoke this dispensation from imputation by unilateral act or in the will itself. Such revocation must be express and therefore is not allowed tacitly.

4) Avoid possible future family conflicts.

The assistance of a professional can suggest strategies to be able to avoid or minimize possible disputes, both by assessing in advance the possible impact of living donations on the succession and by ensuring that the donations do not infringe on the portions of the estate.

5) Tax aspects.

It is advisable to assess the tax impact of the donation in order to enable the donor to take advantage of the benefits provided by law and, consequently, reduce the tax burden on the estate.

6) Donation without legal assistance - possible risks

Acting without the assistance and advice of a lawyer may result in:

• Invalid deed of gift, due to lack of formal or substantive requirements;
• Disputes between heirs, if the donation affects the rightful share;
• Tax issues, failure to use benefits that could have been taken advantage of.

The Law Firm of Attorney Benedetta De Paola offers specialized legal advice to assist you in the complex legal institution of donation, after a complete analysis of Your assets.
This is in order to be able to draft/revise thedeed of gift or to protect You in handling any disputes arising from it.

Contact the Law Office ofAttorney Benedetta De Paola to receive advice on this matter.