«Voltura catastale» carried out by the heir implies tacit acceptance of the succession

ABSTRACT: The Italian Supreme Court (the Corte di Cassazione) affirmed that  the «voltura catastale» carried out by the person called to the inheritance constitutes an act of tacit acceptance of the succession.

 

Tacit acceptance of the succession in the Italian legal system

 

In the Italian legal system, the person called to the inheritance (hereinafter also referred to as the “heir”) formally becomes heir when accepts the succession. When it is accepted, the succession becomes effective from the moment of the death of the deceased (the so-called “opening of the succession”).

 

The Italian Civil Code provides that the acceptance of the succession may be express or tacit.

 

Express acceptance of the succession takes place by means of a formal and unconditional declaration made by the heir in a public deed or private writing.

 

According to Article 476 of the Italian Civil Code, acceptance is tacit when the heir performs an act that necessarily implies his intention to accept and that he would not be otherwise entitled to perform.

 

In other words, as confirmed by a settled case law[1], a tacit acceptance of the succession occurs when the heir’s actions are not consistent with the renounce and are indicative of the opposite intention to accept the succession.

 

Italian law expressly provides for several cases of tacit acceptance of the inheritance such as the donation, the sale, or the transfer of succession rights made by the heir, as well as the case of waiver of inheritance rights when this takes place for valuable consideration or in favour of only some of the heirs.

 

In addition to the “typical” cases provided for by the law, the Italian courts laid down further cases that might constitute tacit acceptance of the succession.

 

In particular, the question has been raised as to whether the transfer of ownership of the inheritance assets in the land registers (the so called “voltura catastale”) can be regarded as an act of tacit acceptance of the succession when it is carried out by the heir.

 

The voltura catastale as an act of tacit acceptance of the succession

 

With judgment No. 11478/2021, the Corte di Cassazione has ruled that the tacit acceptance of the succession must be inferred through an overall assessment of the heir’s behaviour.

 

In this regard, it is necessary to distinguish between acts of a fiscal nature and acts of a mixed nature, i.e. acts that have both fiscal and civil aspects.

 

According to the Corte di Cassazione, an act of fiscal nature, such as the declaration of succession[2], is not sufficient to prove that the heir has tacitly accepted the succession.

 

Acts of a purely fiscal nature are generally performed to fulfil legal obligations that require the payment of taxes. Therefore, in the absence of further acts that unequivocally imply a willingness to accept the succession, such acts cannot be deemed as acts of tacit acceptance.

 

On the other hand, tacit acceptance of the succession can be presumed when the heir performs acts of a mixed nature, such as the voltura catastale. Indeed, the voltura catastale is relevant not only for the payment of taxes but also for the purposes of  updating the current legal disposability of the assets since it allows ascertaining the transfer of ownership and real rights on properties included in the inheritance.

 

Therefore, the voltura catastale carried out by the heir on an inherited property can be regarded as an act of tacit acceptance of the succession.

 

In other words, it can be assumed that the heir intends to acquire a property when he voluntarily accepts to perform the cadastral transfer in his favour.

 

Therefore, the voltura catastale necessarily implies the “willingness of the heir to accept the succession”, pursuant to Article 476 of the Italian Civil Code and can be considered a case of tacit acceptance, but only for the heir who has registered the transfer of the inherited assets in his favour.

 

In fact, the Corte di Cassazione said, the cadastral transfer carried out by one of the heirs does not imply the tacit acceptance of the succession also for the other heirs, except that they consent, delegate or ratify such transfer or their willingness to accept the succession is proved.

 

Conclusions

 

The voltura catastale implies tacit acceptance of the succession.

 

The rule established by the Italian Supreme Court takes on great importance in the light of the effects of accepting the inheritance: for example, by accepting the succession, the heir becomes responsible for the tax obligations and debts of the deceased.

 

Therefore, it is clear that such effects of the voltura catastale cannot be extended to those heirs who have not actually requested it. This explains the need to carefully evaluate the overall behaviour of the heirs in order to deduce their potential tacit willingness to accept the succession.

 

[1] Corte di Cassazione, No. 1438/2020; No. 22317/2014; No. 10796/2009; No. 5226/2002; No. 7075/1999.

[2] According to the Italian legislation, heirs must file the declaration of succession for tax purposes within 12 months from the date of the opening of the succession.

 

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