Co-heirs and the distribution of debts and hereditary burdens

Current legislation establishes that co-heirs contribute to the payment of debts and encumbrances in proportion to their respective shares of the estate, unless the testator has provided otherwise. This principle emerges clearly from an analysis of the legal framework, which can be examined from three main perspectives: the identification of inheritance debts, the distribution rule, and the possibility of derogation by the testator. However, it is necessary to first consider the relationship between this discipline and that of communion and division of inheritance.

Communion of inheritance and division of debts

According to the traditional approach, communion of inheritance includes real rights, potestative rights, universality of movable property, and businesses, but not the credits and debts of the deceased. The ancient rule nomina et debita inter coheredes ipso iure dividuntur applies, according to which the debts of the deceased are passed on to the heirs without constituting a communion of debtors. The majority of legal doctrine excludes the deceased's debts from falling within the inheritance community, while accepting the idea that credits are part of it.

There are, however, exceptions to this general rule, such as indivisible obligations and those secured by mortgage, which follow specific rules pursuant to Article 754 of the Civil Code.

Hereditary Debts and Encumbrances: Definition and Distribution

Hereditary debts are those existing in the deceased's name at the time of his or her death and are transferred to his or her heirs. They include contractual and non-contractual debts, as well as interest accrued after the succession, which is levied on each co-heir in proportion to their share. Strictly personal debts and debts that are non-transferable by their nature, such as fines, are excluded, as they are not passed on to the heirs.

Hereditary burdens, on the other hand, are obligations that arise for the heirs with the opening of the succession and include, for example, funeral expenses, inventory, administration, division, and sums owed to the executor. Inheritance tax is also considered a heritage burden, but with the peculiarity of solidarity towards the tax authorities.

The regulation of mandatory legacies

There are diverging opinions on mandatory legacies, whether by will or by law: some consider them a heritage burden, while others believe they are governed by Articles 662 and 663 of the Civil Code, which do not coincide with the legislation in question.

Proportional distribution and exceptions

The law establishes that the debt The inheritance is divided among the co-heirs in proportion to their respective shares of the inheritance, in accordance with Article 754 of the Civil Code, which governs relationships with creditors. However, the testator may derogate from this principle by establishing a different distribution of the inheritance liabilities. Case law has clarified that this exception can also be made through a contract entered into during the deceased's lifetime.

The exception to the proportional distribution between co-heirs does not affect the rights of creditors, who retain the right to take action pro rata against all heirs, even when only one of them has assumed the obligation to repay the entire debt.

The rules governing the distribution of debts and inheritance burdens among co-heirs are based on a principle of proportionality, which ensures a fair distribution of liabilities among the heirs, unless otherwise provided in the will. The exceptions provided for by law, as well as the possibility of derogation by the testator or the co-heirs themselves, offer a complex framework that allows for adequate management of inheritance liabilities while respecting the deceased's wishes and the rights of creditors. For further information on this matter, please contact the Agenzia delle Successioni and receive the appropriate guidance.