Inheritance Division in Italy

Brief Guide on the Inheritance Division in Italy

Are you an heir and need to know how to tackle the inheritance division process in Italy? You’re in the right place. We will explain the fundamental aspects to consider and, finally, we will also clarify how to identify the jurisdiction and competence in case of judicial division in Italy. (If you’re interested in delving deeper into the inheritance succession in general, you can consult this other article on our blog).

What is the inheritance division in Italy and when is it necessary? 

When a person dies, their assets are transferred to those who have accepted the inheritance. These individuals, stepping into the rights of the “de cuius,” become co-owners of the assets subject to the succession according to their respective shares. This co-ownership is defined as “hereditary community.” Clearly, some heirs might be interested in dissolving this hereditary community in order to obtain their portion of the inheritance. And so, the inheritance division constitutes one of the main ways to dissolve the hereditary community. Through it, i.e., through certain legal procedures, each heir can be allocated assets corresponding to their share.

What are the ways to divide the inheritance in Italy? 

There are three ways to carry out the inheritance division in Italy:
  • division made by the testator
  • contractual division
  • judicial division
Let’s look at them in detail

Inheritance division in Italy made by the testator 

In this case, it is the testator themselves, in their will, who decides the division of assets among the heirs. Thus, after their death, the hereditary community on the assets will not form. Each heir, after accepting the inheritance, will see the assets already divided.

Contractual inheritance division in Italy (agreement among heirs) 

The contractual division is the main method to end the hereditary community. It’s a private agreement (“division contract”), that can be used when there are no conflicts among the heirs regarding the allocation of the inherited assets. Not surprisingly, it is also referred to as “amicable” division. In this case, the participants receive a part of the value corresponding to their share, defined as “apportionment.”

In the division contract, it is necessary that all co-heirs are involved; otherwise, the contract itself will be null and void. It’s an act of extraordinary administration that substantially modifies the assets of the participants. Indeed, it transfers the ownership of the inherited assets to the individual heirs and may also require the sale of an immovable property that is difficult to divide, with the subsequent division of the proceeds. Attention. When immovable properties are involved, the division contract must be drafted as a public deed by a Notary.

The three main phases through which the contractual inheritance division can be divided into shares are:

  • reconstruction and inventory of the hereditary mass: before proceeding with the division of the inheritance, it is essential that each heir includes in the hereditary mass all the assets that were received during the life of the de cuius. Debts are also considered. In exceptional cases, heirs might not be obligated to include assets received during life or could have been dispensed from doing so by the donor.
  • valuation of assets: evaluation of the hereditary assets according to their market value at the moment of the inheritance division. This step is crucial for the division of immovable properties, but it is not necessary if it involves only assets of the same type (e.g., money).
  • actual division of assets: only in this third phase can the heirs withdraw from the hereditary mass the assets in proportion to their shares.

In case of problems, what are the remedies available to protect the heirs?

The contractual inheritance division act can be contested under certain circumstances. Let’s see the main ones.

  • contestation for violence or deceit: if violent or deceitful behaviors have occurred, the contract of inheritance division can be annulled within 5 years from the end of the violence or from the discovery of the deceit. Attention. If an heir has sold their share after discovering the violence or deceit, they will lose the right to contest the act of division.
  • error in the omission of hereditary assets: if one or more hereditary assets were mistakenly not included, there isn’t a sufficient cause to annul the act of inheritance division (unless the error was the result of violence or deceit). However, this situation can be corrected through a supplement to the act of inheritance division.
  • action for rescission for lesion (Article 763 of the Civil Code): an action that can be undertaken by a co-heir who believes to have been disadvantaged beyond a quarter of the share due to them. The action must be taken within 2 years from the division and can also be done if the division was established directly in the will by the de cuius. The ultimate goal is to ensure that each heir actually receives their share.

The heir against whom this action is presented can stop the process and offer a supplement in money or in kind to the plaintiff and to the other co-heirs associated with the action of reduction.

The advice is always to involve a lawyer experienced in the field to ensure an equitable agreement that respects the rights of all heirs, reducing costs and delays.

Judicial inheritance division in Italy (by court order) 

If the co-heirs cannot reach an agreement to proceed with the dissolution of the community, one solution is to appeal to the competent Court, with the request to proceed with the judicial division of the inheritance.

Attention. Before starting the lawsuit, it is mandatory to attempt mediation in front of a conciliation body recognized by the Italian Ministry.

Once the case is established, evidence can be produced in court to demonstrate the parties’ theses (e.g., considerations on the value of the inheritance assets). There may also be the intervention of a technical consultant, appointed by the Judge, to evaluate the value of the assets and assess the actual division of the same.

The consultant’s report is then used by the judge to draft the division project with which it is established how and to whom of the heirs a certain asset will be assigned. Once the division project is prepared, it is filed in the registry to allow the interested parties to review it and raise any objections. It is crucial that all participants in the division process are involved and satisfied with the proposed methods. If there are no objections and the divisional project is approved, it is declared enforceable, and each of the portions of assets can be attributed to the respective co-owner.

This is the moment when the distribution of the common properties is definitively established.

In the case that it is not possible to divide the assets of the community equitably and none of the co-owners requests their allocation, the competent Judge can order the sale of these assets. The proceeds from the sale will then be distributed among the rightful owners according to their participation shares.

If the parties are not satisfied with the division, they have the option to appeal to a College of judges who will decide on the proposed observations.

How is the competence and jurisdiction for hereditary cases like the inheritance division identified? 

The special forum for hereditary cases (“forum hereditatis”), according to the Italian Code of Civil Procedure, is identified in Article 22 regarding territorial competence. It is provided that, for these cases, «the judge of the place of the open succession is competent».

Moreover, in case the succession was opened abroad and the case falls within the jurisdiction of the Italian judge, Article 22 of the Code of Civil Procedure, in the second paragraph, indicates two concurrent subsidiary forums:

  • that of the judge of the place where the majority of the hereditary assets are located
  • or, that of the judge of the place where the residence of the defendant or one of the defendants is established (if there are no hereditary assets on the national territory).

“The judge of the place of the open succession”: which criterion?

If the succession was opened in Italy, the territorially competent judge for hereditary cases is to be identified according to the criterion of the last domicile of the de cuius, i.e., with reference to the place where the deceased had established their domicile at the time of death.

This criterion for determining the forum for hereditary cases is jointly derived from Article 22 of the Code of Civil Procedure and from Article 456 of the Civil Code (“the succession opens at the time of death, in the place of the last domicile of the deceased”).

The last domicile of the deceased, in practice, coincides with the place where the subject had established the main center of their material, economic, social, moral, and family affairs. Even though these interests usually converge in the place of residence, the last domicile of the deceased might not coincide with the place where they had actually established their residence or dwelling.

It is also an exclusive forum, but derogable by the parties. This means that the parties could conventionally establish a different forum than that of the «judge of the place of the open succession», as established in Article 28 of the Code of Civil Procedure.

The second paragraph of Article 22 of the code of civil procedure deals with cases related to a succession opened abroad. Attention. The rules set out in this provision concern competence and not jurisdiction; therefore, if the Italian judge, in relation to a hereditary case, does not have jurisdiction (Article 50 of Law number 218/1995 on international private and procedural law), the case cannot be adjudicated by the national judge.

Once the jurisdiction of the Italian judge is ascertained, the cases provided for by the second paragraph must be proposed in front of the Italian judge of the place where the majority of the deceased’s assets are established. To determine the latter, the criteria established by Articles 14 and 15 of the Code of Civil Procedure (competence for the value of movable and immovable properties) are adopted.

If there will be no assets located on the national territory, the general criterion provided by Article 18 of the Code of Civil Procedure (place of residence of the defendant or defendants) will be resorted to.

Finally, for the Italian jurisdiction to apply, it is necessary to take into account Article 50 of Law 218/1995 which provides the following alternative conditions (it suffices that one exists):

  • the de cuius was an Italian citizen at the time of death
  • the opening of the succession occurred in Italy
  • the part of the hereditary assets of greater economic significance is established in Italy
  • the defendant in the case is domiciled or resident in Italy or has accepted the Italian jurisdiction (except that the claim is related to immovable properties located abroad)
  • the claim is related to assets located in Italy.


We hope to have clarified the salient aspects of the inheritance division in Italy. If you need consulting or assistance, you can contact one of our Italian lawyers specialized in inheritance matters.

Dott.ssa Elena Capodacqua

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