The actio interrogatoria and the forfeiture of accepting the inheritance

Anyone interested may request the judicial authority to set a deadline within which the heir must declare whether he intends to accept or renounce. If this deadline expires without action, the heir permanently loses the right to accept.

The provision of art. 481 of the Civil Code, traditionally known as actio interrogatoria, is intended to prevent the continuation of the state of uncertainty that weighs on the inheritance process. Ordinarily, the right to accept an inheritance expires ten years after the opening of the succession. This is a considerable period of time, during which the legal relationships of the deceased may remain suspended, with obvious negative consequences for those subsequently called upon, creditors, and all parties involved in defining the succession structure.

Through the action under consideration, anyone demonstrating a concrete and present interest can request the judge's intervention to impose a shorter deadline for the defendant to exercise the right to accept, under penalty of forfeiture. The defendant, the defendant in the proceedings, is therefore faced with a clear choice: accept the inheritance within the established deadline or irrevocably lose the right to do so.

Acceptance may occur according to the procedures established by the Civil Code, whether express or implied. Acceptance by conclusive acts, that is, by performing actions that necessarily imply the will to accept and which the person entitled to accept would not have the right to perform except in his capacity as an heir, is also capable of preventing forfeiture. However, if the term expires without result, the person entitled to accept loses not only the status of testamentary successor, but also that of legitimate successor, given the unique nature of the delegation. The loss of the right to accept affects the entire inheritance.

It should also be noted that any waiver made after the deadline has been set does not, in principle, exclude the possibility of revocation pursuant to Article 525 of the Civil Code, provided that the intention to revoke is expressed before the expiration of the judicially established deadline and the legal requirements are met.

Who can set the deadline for accepting or renouncing the inheritance?

The right to sue belongs primarily to those called in the second place, who have a direct interest in knowing whether the first called intends to accept or not. A similar interest may exist for the co-heir (or co-called), who wishes to promptly define his or her position and that of the other candidates.

Creditors of the deceased or the person entitled to the estate are also entitled to claim action if uncertainty regarding the acquisition of the inheritance affects the consistency of the patrimonial guarantee. Legal doctrine and jurisprudence also recognize the legitimacy of the executor, who has an interest in being freed from his duties once the heirs have been identified with certainty, as well as the curator of the vacant estate. The State, as the legitimate successor in the absence of other heirs, can also initiate proceedings to resolve the succession matter.

What is the time limit for accepting an inheritance?

The action may be brought against the defendant, even if incapacitated. In this case, however, the deadline must take into account the need to obtain the judicial authorization required for acceptance by the legal representative.

Conversely, the action cannot be brought against the person entitled to the estate who is in possession of the assets, since the short three-month time limit set forth in Article 485 of the Civil Code for the preparation of the inventory already applies to them. However, if the entitled possessor is incapacitated or a non-profit legal entity, there is no reason to exclude the applicability of Article 481 of the Civil Code, since in such cases, possession does not automatically entail the acquisition of the inheritance.

How to request a deadline to have your inheritance accepted

The application is submitted by petition to the court of the place where the succession is opened. The judge, by decree, sets the date for the hearing and establishes the deadline for serving the petition and decree on the person summoned.

Relying on professionals like those at Agenzia delle Successioni, therefore, seems inevitable. After a preliminary consultation, the relevant service can be activated.

Following the cross-examination, the judge issues an order, which may be appealed to the full court pursuant to Article 739 of the Code of Civil Procedure. The panel, which may not include the judge who issued the contested order, decides in chambers, after hearing the interested parties, with an order that is not subject to further appeal. This order cannot be appealed to the Court of Cassation, as it lacks the decisiveness requirement.

Article 488, paragraph 2, of the Civil Code allows for the extension of the judicially established deadline, provided there are justified reasons. The request for extension, pursuant to Article 749, final paragraph, of the Code of Civil Procedure, is subject to the same procedural rules outlined above.

What is the point of setting a deadline for accepting an inheritance?

The actio interrogatoria is therefore a tool for balancing the interests of the person called upon to weigh up the succession choice and the interests of the other parties involved in not being subjected to a prolonged situation of uncertainty.

This represents a significant exception to the standard ten-year acceptance deadline, as it allows for the resolution of the succession matter to be brought forward, strengthening the need for certainty in legal relationships and the protection of third-party trust.