Representation: the explanatory guide

When a subject is unable or unwilling to accept an inheritance, his descendants take over.

Your brother died leaving you at home in the mountains but you have no intention of accepting it. What happens now? In these cases, the Civil Code has provided for a specific legal institution, called representation [1]whose purpose is to allow the descendants of the child or brother of the deceased, who cannot or do not want to accept the inheritance, to take over the part of the inheritance or legacy that would correspond to the ascendant (or the child / brother). of the deceased).

In simpler words, as a result of the representation the descendant (representative) is called to succeed instead of the ascendant (represented) who does not want or cannot accept. In this way, our legislator intended to protect the family of the represented, avoiding the loss of the estate of the deceased if he does not participate in the inheritance.

Because this is an institution that is not easy for lay people to understand, this article contains one explanatory guide to representation.

The representation operates both in reference to the legitimate succession – that is, to the one that opens when the deceased has left no will and the inheritance is delegated by law to the spouse, children and relatives up to the sixth degree – and in relationship with testamentary succession -or governed by will-, unless the testator has not indicated substitutes for the caller who cannot accept the inheritance or for the renunciation.

What is representation?

There representation is that legal institution that provides for the taking of possession of the representative in the place is in the degree from represented in connection with an inheritance or the purchase of a legacy [2]in the case represented he cannot accept the inheritance to:

  • communion [3]. Consider the case of a son who dies at the same time as his father, as both are involved in a car accident, so the former cannot accept the inheritance of the latter;
  • premorence. See the hypothesis of a daughter dying before her mother;
  • absence [4];
  • indignity [5];
  • prescription [6] o confiscation right to accept the inheritance [7];
  • disinheritance.

The representation also applies in the case that the represented does not want to accept the inheritance or legacy by resignation [8].

What are the prerequisites for representation?

For the application of the representation the existence of certain is necessary requirements this is to say:

  1. the ascendant / represented must be the son or daughter or brother / sister of the deceased;
  2. the ascendant / represented person must have expressly renounced the acquisition of the hereditary assets or may not accept them for any of the reasons listed above.

Representatives: Who are they?

The representative is the legitimate descendant I natural of the representedwho has renounced or cannot accept the inheritance.

When it comes to children succeeding their parents by representation it is necessary to remember that as a result of the reform in the matter of affiliation [9] under the condition of legitimate son the of natural son. It follows that the natural child no longer has to acquire the status of legitimate child before he can inherit from the parent or take over from him by representation, acquiring by the sole fact of birth the same relationship with all the relatives of the father. / mother who has a legitimate child. However, the natural child must be recognized by the parent or the judicial declaration of paternity or maternity must have been pronounced against him [10].

In relation to the adoptive descendants is distinguished between ordinary or adopted adults I special adoptees or minors. The former must be excluded from the category of representatives as they are not expressly provided for in Article 467 of the Civil Code. The latter, on the other hand, can be represented as law n. 184/1983 attributes to them the condition of legitimate children.

He represented and the subject called to inherit who cannot or does not want to succeed the deceased, whose legitimate, natural and adopted child, the descendant of the natural child or, collateral, the brother or sister must be [11].

The representative and the person represented, at the time of opening the succession, must be in possession of the ability to pass, that is, the suitability, as a natural person, to become an heir. This suitability is attributed to the person by the mere fact of being alive, in the sense that he was born or even just conceived, when the succession is opened and he has been called to inherit.

Representation: What are the effects?

Representation works ininfinity – that is, between father and son, between son and grandson (son of the son), both in a straight line and in a collateral line. In addition, the call to inheritance, that is, division, takes place by lineagesmeaning the set of people who are all descended from the same ancestor (called stem), regardless of the equality or not of the rank of representatives or their number within each lineage. [12].

Basically, for the task of the institute it does not matter whether the degree (of kinship with the deceased) of the descendants or their number is equal or unequal. Therefore, the rule that the nearest degree excludes the farthest one is not followed. Relatively, then, to the concept of lineage division let’s give an example to better understand.

Giovanni dies leaving as successors his two daughters, Martina and Veronica, who in turn have two sons each. If Martina and Veronica give up Giovanni’s inheritance, it will be given for representation in favor of the four grandchildren. If one of Martina’s children also renounces the inheritance, her share increases only in favor of her sister, that is, of Veronica, and not also in favor of Veronica’s two children as would happen, instead , if the four grandchildren succeeded. to each other, not by races.

In addition, the representation also takes place in the case of singularity of lineageor when the person represented has only one child and possibly grandchildren through them.

The representative who succeeds by representation is obliged to confer by way of to have breakfast what has been given to his ascendant, even if he decides to give up the inheritance [13].

Since the representative is in the same position as the person represented, it does not seem justifiable that he should actually receive more than his ascendant would have received in concurrence with the same persons; so also the son of the deceased who comes to compete with the children of his brother who succeeded him by representation, will be obliged to compare with his nephews, to avoid taking advantage of the fact of competing with them instead of his own brother.

Theobligation of collation of the descendant which happens by representation in relation to the goods given to him directly by the deceased exists in relation to his. brothers o sisters [14].

The doctrine precludes that this obligation exists between cousins ​​who succeed by representation, in order to avoid that they receive a treatment inferior to which they would have been entitled if they had agreed with their uncle.


Note

[1] Art 467 cod. civ.

[2] A bequest is a provision contained in a will by which the testator (the testator) assigns to a person (legatee), not necessarily the heir, a particular property or a specific property right. For example, Simona makes a will, leaving her best friend a collection of designer clothes (tied).

[3] Art 4 cod. civ.

[4] Art 48 cod. civ. The absence is declared by a court in the case of a person who has no longer appeared at the place of his last home or last residence and of whom there is no further information, if at least two years have elapsed since the last news. The declaration of absence must be made before the opening of the succession.

[5] Art 463 of the Italian Civil Code civ. Indignity is a civil sanction for which the person represented cannot succeed because he is guilty of serious conduct listed strictly by law. For example, think of the daughter who tried to kill her mother or who altered her father’s will.

[6] In accordance with Art. 480 of the Civil Code. the right to accept the inheritance expires after 10 years. The term begins to count from the day of the opening of the succession.

[7] In accordance with Art. 481 of the Civil Code. Anyone interested may ask the judicial authority to set a time limit within which the person summoned must declare acceptance or renounce the inheritance. If this period expires in vain, the called person loses the right of acceptance.

[8] Art 519 cod. civ.

[9] L. n. 219/2012.

[10] Art 250 cod. civ.

[11] Article 468 of the Italian Civil Code civ.

[12] Art 469 of the Italian Civil Code civ.

[13] Art 740 cod. civ.

[14] Art 737 cod. civ.

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