Succession with minor children: everything you need to know

Succession is an important and sensitive subject, which becomes even more complex when minor children are involved. In the event of a parent's death, Italian law establishes specific rules to protect the rights of heirs, particularly minor children, who, due to their young age, cannot independently manage the inheritance. Let’s take a look at how succession involving minor children works and what the main legal provisions are in this regard.

Who are heirs of the first order?

In the Italian legal system, children are considered heirs of the first order. This means that upon the death of a parent, the children (both minors and adults) are first in the line of succession, together with the surviving spouse (if present), and are therefore included in the division of the estate. The assets are divided equally among the children, who will inherit in equal shares if there is more than one.

What happens when there are minor children?

When minor children are involved, Italian law provides special safeguards to ensure that their rights are adequately protected. Parents have the duty to care for their children during their lifetime and also after their death.

The role of the guardian

If one of the parents dies leaving behind minor children, the surviving spouse automatically becomes the administrator of the children’s inheritance, but may not dispose of the minor children’s inherited assets without judicial approval. In other words, even the surviving spouse is subject to limitations in making financial decisions concerning the children’s inheritance. Furthermore, if both parents are deceased, a legal guardian will be appointed for the minors, who will be responsible for managing their assets to ensure that the children do not suffer any financial harm.

Trust fund provisions for minors

When minors are heirs, Italian law requires that the assets allocated to them be managed with the utmost care, in order to safeguard their future. Specific rules are in place to protect the inherited assets of minor children through a trust fund that can be managed by the guardian. In this way, the minors’ assets are shielded from improper expenses and are managed so that they can yield returns and grow over time.

Division of the estate: the reserved share (legittima)

A fundamental concept in succession involving minor children is the legittima, or reserved share, which is the portion of the estate that the law automatically reserves for children, regardless of the deceased’s testamentary provisions. The law stipulates that children (whether minors or adults) are entitled to a portion of the estate that cannot be taken away from them—not even by a will.

The legittima amounts to half of the estate if there are two or more children. In the case of an only child, the legittima corresponds to two-thirds of the total estate. This means that even if a will favors someone else (e.g., another relative or a foundation), minor children are always entitled to a share of the inheritance that cannot be altered or taken away.

Acceptance of inheritance by minor children

Another important aspect of succession involving minor children is the acceptance of the inheritance. Since minors cannot carry out legal acts on their own, the inheritance must be accepted by the person exercising parental authority (i.e., the surviving parent or the legal guardian).

In some cases, it may be necessary to accept under benefit of inventory, a procedure that protects minors from inherited debts by ensuring that their share of the inheritance is not used to cover the deceased’s liabilities.

Tax implications of succession involving minor children

Succession involving minor children also carries certain tax implications. In Italy, inheritance tax is calculated based on the value of the estate and the degree of kinship between the deceased and the heirs. Children are exempt from inheritance tax up to a certain threshold, which varies depending on the value of the estate and the provisions in the will. Legislation also provides specific tax relief for minors who inherit real estate, such as the possibility of reducing the taxable base if the property is intended to become their residence.

Succession involving minor children is a complex matter that requires careful management of the inherited assets. Italian law provides a range of tools to protect the rights of minors, including the safeguarding of their reserved share, the appointment of a guardian, and the prudent administration of the estate. It is essential that parents or legal guardians consult professionals in the field, such as those at Agenzia delle Successioni, to ensure that the deceased’s wishes are respected without compromising the rights of minor children.