Testamentary division: how to assign assets to heirs

A father owns two apartments, some land, and a wealth of savings accumulated over a lifetime of work. He knows his children well. He knows that one already lives in one of the family properties, that another is particularly attached to the land inherited from his grandfather, and that the third would prefer cash to managing real estate.

Many people in a similar situation ask themselves a specific question: is it possible to avoid heirs having to argue for years over how to divide the estate? Because, to avoid any misunderstanding, if the deceased doesn't dispose of his or her estate, the heirs will have a share of all the properties.

The law allows the testator to organize in advance the distribution of his assets through the division of the will, a tool that allows him to indicate in the will which assets should be attributed to the individual heirs after death.

This is an extremely useful solution for preventing family conflicts and facilitating succession management. Questions inevitably arise regarding the value of the estate, individual assets, and their attribution. We'll discuss these in the following paragraphs.

• What is testamentary division?
• Why many testers choose this solution
• The testator's will is not absolute
• What happens if the assets do not have the same value?
• When the division of a will can be contested
• The advantages over the normal division
• A choice that requires planning and expertise

What is testamentary division?

Testamentary division is the instrument through which the testator can attribute specific assets to his heirs directly in the will, predetermining the future division of the inheritance.

In practice, the testator doesn't simply indicate who the heirs will be and how much they will inherit. The difference is significant. Writing that three children will each inherit one-third of the estate is different from establishing that a specific apartment will go to the first child, a plot of land to the second, and a sum of money to the third. In the first case, the heirs will still have to agree on the division of the assets. In the second, the distribution has already been determined by the testator. The goal is to avoid the heirs having to subsequently proceed with the division of the estate or engage in lengthy negotiations to reach an agreement.

Why many testers choose this solution

Disputes between heirs don't always arise from bad family relationships. Often, they simply stem from each person's different appreciation of inherited assets.

A property can be an economic resource for one person and a family heirloom for another. Agricultural land may be of interest to one heir but completely useless to another. Testamentary division allows the testator to consider these needs while still alive, distributing the estate consistently with the family's circumstances.

This reduces the risk that the heirs will find themselves arguing about the destination of the assets or will be stuck in a long inheritance community.

The testator's will is not absolute

Many people think that a will allows them to freely decide any distribution of their estate. In reality, there are very precise limits. Even in the division of a will, the rights of the forced heirs must be respected, that is, those family members to whom the law reserves a minimum share of the inheritance.

If the division arranged by the testator infringes the rights of a child, spouse, or other persons protected by law, the situation can be contested and corrected through the means provided by law.

The testator's wishes remain central, but they must always be consistent with the rules protecting the rights of the necessary heirs. Therefore, it is advisable to consult with the experts at the Agenzia delle Successioni by completing the form, or to appoint an executor who can carry out the testator's wishes, in accordance with current regulations.

What happens if the assets do not have the same value?

One of the most delicate aspects concerns the value of the assigned assets. Imagine that one child receives a property worth €300,000 and another receives a plot of land worth only €150,000. In such a situation, it may be necessary to arrange for financial adjustments between the heirs to rebalance their respective positions.

Precisely for this reason, preparing a will division requires special attention. An incorrect valuation of assets or an unbalanced distribution can become fertile ground for future disputes. This does not mean that the heirs, if satisfied with the division, can forgo financial adjustments to reconcile their share.

When the division of a will can be contested

The existence of a willful division does not automatically eliminate all potential conflicts. Heirs may challenge its validity when they believe their rights have been violated or when issues arise regarding the drafting of the will.

In some cases, disputes concern the actual value of the assigned assets. In others, they focus on the infringement of the reserved share or the validity of the will itself . For this reason, careful planning is the best form of prevention.

Among the various cases, there may be a will drawn up jointly, or one that establishes the testator's full and informed wishes, or the presence of other wills subsequent to the published ones. These are some of the cases that will almost certainly lead the heir to challenge the will in order to assert their rights. The judge will subsequently determine the validity of the will.

The advantages over the normal division

When the division of the estate has been properly organized by the testator, the heirs can avoid many of the difficulties that often accompany inheritance. They don't have to jointly determine the criteria for distributing the assets. They don't have to face exhausting negotiations over the destination of the properties. And, above all, they can avoid the estate being stuck in a co-ownership situation for years.

The division of the will therefore allows many potential sources of conflict to be transformed into decisions already made by the owner of the estate.

A choice that requires planning and expertise

Deciding how to distribute your assets goes beyond mere economic value. It involves evaluating family relationships, the heirs' personal needs, the characteristics of the estate, and legal constraints.

For this reason, it is important to carry out careful succession planning, ensuring that the planned division is balanced and compliant with the rules governing succession.

The Agenzia delle Successioni, starting with a consultancy, assists families and testators in analyzing the estate, verifying the shares due to the heirs, and preparing solutions that can reduce the risk of future disputes.

Inheritance division is one of the most effective tools for preventing conflicts. In inheritance matters, conflicts often arise when decisions are postponed. Inheritance division, on the other hand, allows one to assume that responsibility personally, leaving heirs not with the uncertainty of decisions, but with the clarity of a previously expressed wish. In some cases, inheritance division is arranged when the testator wishes to divide the estate only after their death. In other cases, however, after consultation, the estate is gradually transferred to the heirs while the testator is still alive. We've discussed this topic in the following link.