Prelegato, the privilege hidden within the will

Prelegacy, governed by art. 661 of the Civil Code, is an institution that exists at the exact point in which the heir ceases to be merely an heir and simultaneously becomes also a legatee.

A pre-legacy is a legacy that affects the share of the heir who receives it, but at the same time affects the entire estate. It is an advance, a prededuction, a privilege that the testator decides to grant to one of his successors, without formally altering the share structure.

The mechanism is only apparently simple. The prelegatee receives the entire property as a legacy, and only then is his share of the estate calculated, reduced by the value of what he has already received. The legacy is not added to the share, but precedes and reduces it. The prelegate, in short, is a different way of distributing the estate.

A pre-legacy is not a sub-legacy, because in a sub-legacy, the beneficiary is a legatee. It is not a portioned assignment of assets, because in that case the assets are fully attributed to the heir's share. It is not a division made by the testator, because he does not distribute the estate. He alters it before the division begins.

Who can be a pre-legatee

The law refers to "one of the co-heirs," but practice and doctrine have greatly expanded this definition. A prelegate may be a legitimate heir, a testamentary heir, several co-heirs together, or even—and this is where the institution shows its full flexibility—the sole heir.

The heir, when in the dual role of pre-legacy and heir, can accept the inheritance and renounce the legacy, or accept the legacy and renounce the inheritance. He or she can accept with benefit of inventory, sell the inheritance while retaining the legacy, or suffer the revocation of one disposition without affecting the other. The pre-legacy, in this sense, is an instrument of freedom.

What can the prelegacy do?

A pre-legacy can be binding on all co-heirs, some of them, or even just the pre-legatee himself. However, when it is binding on co-heirs other than the beneficiary, it is no longer a pre-legacy. It is an ordinary legacy.

The pre-legacy, therefore, is not defined by the number of burdened parties, but by the subjective coincidence between those who receive and those who, at least in part, contribute.

The pre-legacy separates two titles: heir and legatee. This separation produces consequences that no other inheritance institution creates.

Revocation of a legacy does not affect the appointment of an heir. Renunciation of the inheritance does not prevent the request for a legacy within the available period. Representation, accretion, and substitution may operate differently for the two vocations. A pre-legacy is subject to reduction like any other legacy.

Direct effectiveness and indirect effectiveness

A pre-legacy can be directly effective , when the asset passes immediately to the pre-legatee upon the opening of the succession. Or it can be indirectly effective, when the pre-legacy generates an obligation: the co-heirs must perform the service.

This is where the famous problem of the unisubjective relationship arises. The prelegatee is simultaneously creditor and debtor. The doctrine is divided. There are those who maintain that the relationship cannot arise because the subjective duality is lacking, and those who instead believe that the relationship arises and ends when it reaches its practical purpose.

But practice, and a significant portion of doctrine, accept the possibility of a unisubjective relationship, because it is the only way to give operational coherence to the institution.

Concrete example of a pre-legacy

Titius dies leaving three co-heirs: Caius, Sempronius and Maevius , each appointed for 1/3.

In his will he writes:

“I leave to Caius , as a prelegacy, the house on Via Roma.”

Starting data

• Total estate value: €300,000
• House value: €90,000
• Inheritance shares: 1/3 each → €100,000 each

How does the pre-legacy work in practice?

1. Gaius receives the house in its entirety as a legacy

Before calculating the shares, Caius takes the house: €90,000.

2. Caius' share is calculated, but reduced by the value of the pre-legacy

Caio's share would be €100,000, but he has already received €90,000. Therefore, he is still entitled to €10,000 from the estate.

3. Sempronius and Maevius receive their full share

Each one gets €100,000.

Final result

• Caio: house (€90,000) + €10,000 = €100,000
• Sempronius: €100,000
• Mevio: €100,000

The structure of the shares does not change, but the distribution of the assets does: the testator "favored" Caius without touching the hereditary fractions .

Why the prelegacy really matters

The pre-legacy is a precision instrument. It allows the testator to favor one heir without formally altering the shares. It allows for targeted attributions—real estate, businesses, and property rights—that do not have to end up in the estate to be divided. It allows for more refined testamentary planning, more closely aligned with the deceased's wishes, and more capable of avoiding conflicts between co-heirs.

It's an institution that requires expertise, careful reading of the will, and the ability to interpret the testator's wishes. And this is precisely where the Agenzia delle Successioni can make a difference. A consultation can help reconstruct the legal framework, manage relationships between co-heirs, and protect the individual positions involved.

If you want to know more about testamentary legacies, you can read this article.