The generational transfer of one's assets is not a simple matter.
In fact, the most common question of those about to leave their assets to their heirs is "do I have to make a will or can I rely on intestate succession?"
First, how do these two institutions differ?
Testamentary succ ession is determined when the deceased leaves a will, expressly setting out what his will is.
In testamentary succession, however, the freedom of the testator is not absolute.
The latter, in fact, must take into account the so-called "reserved share", as provided by our legal system, which reserves a part of the estate of the de cuius to the "legitimate heirs", such as: the spouse, the children and, in some cases, even the parents if still living.
Legitimate succession, which is determined in the absence of a will, provides that the estate is devolved by law.
In fact, even in this case, our legal system identifies the beneficiaries according to the degree of kinship: spouse, children, ascendants, collaterals and other relatives up to the sixth degree, up to the state, in the absence of other relatives.
Below you will find some useful pointers that will enable you to decide which type of succession is most suitable according to your family situation.
Identify the disposable share and legitimate share
The legitimate share is the part of the estate that the law reserves by right to specific heirs, called "legitimate", such as the spouse, children and ascendants.
The disposable share-also called the free share-is the remaining part of the estate, which the testator can freely dispose of in a will, to leave to whomever he or she wishes, including the legitimate heirs themselves.
The division between the legitimate share and the disposable share depends on the number and type of relatives remaining after the death of the deceased.
Injury to the legitimate share is determined if a will does not respect the legitimate shares. So, pretermitted legit imates will have the right to sue for the so-called "reduction action" in order to obtain what is due to them.
Legitimate heirs and legitimates
Legitimate heirs are those who succeed bylegitimate succession. Legitimate heirs, on the other hand, are those to whom the share of legitimacy we mentioned just above is destined, and it is the latter who can challenge the testamentary dispositions of the de cuius, but also the donations made by him during his lifetime, in case they do not share them and want to claim their share.
Holographic will and public will
Aholographic will is dated, written and signed entirely in his or her own hand by the testator.
A public will, on the other hand, is an act drawn up by a Notary Public-in his or her capacity as Public Official-in the presence of at least two witnesses.
The holographic will, by its nature, is simple and private, but is at risk of being invalidated by errors of form, while the public will, while costing money and even if known to witnesses, offers greater reliability because it is drafted by a professional to prove future challenge.
Turning to a lawyer provides valuable support during the delicate phase of deciding the fate of your estate, especially if you have doubts or misgivings about the concept of "close relatives"; if you have a spouse and multiple living children and are unclear about the shares due to each of them; if you have made past gifts to them; or if you simply want to ensure that your testamentary wishes are respected and are future-proof against future appeals.
Why rely on the assistance and advice of a professional
Dealing with probate can be complex, especially when there are multiple heirs, real estate or sensitive family situations.
The Law Office of Attorney Benedetta De Paola offers comprehensive assistance to its clients thanks to its experience in succession law, being able to protect both the will of the testator and the rights of his heirs, thus avoiding the occurrence of future conflicts.
Contact the Law Office of Attorney Benedetta De Paola for qualified legal advice.
