DIVISION OF THE ESTATE
The co-ownership of one or more goods can find its source in a voluntary act as when two people, who are spouses or friends decide to buy an asset, giving rise to an ordinary communion, but much more frequently in a inheritance.
If you think about the case of children who inherit from their parents you understand how frequently we can find the so-called joint heirship which has a rather specific discipline (for example pre-emption rights) and requires a substantial agreement between the co-owners. Precisely for this reason it is advisable, at a certain moment, the so-called ‘division', after which each of the parties becomes the sole owner of a quantity of goods or money.
There may be many different variables, depending on the number of goods, the number of people who concur, as well as the homogeneity degree of the values that are to be allocated.
In these cases The Notary intervenes only at the end of an agreement reached, but it is advisable to agree on the allocation plan from the beginning of the goods to make sure to put correctly in place the operation also for tax purposes.
The division of the estate, in fact, is subject to a particularly favorable tax treatment and also when adjustments are possible - within certain limits –it is possible to obtain a not too burdensome taxation.
In some cases provisions may be made of adjustments, especially when the values of the goods to be assigned to the participants are not homogeneous and have the specific function to ensure the full satisfaction of all participants in the economic division.
We hope we have provided a clear exposition of this institution whose legal function can sometimes be the one of finding an agreement that reconciles an argument we wish to avoid or end. In these cases difficult terms like ‘division settlement' or ‘dividing transaction' are used but, beyond these complex definitions our intent is simply to find an agreement between co-owners and avoid any disputes, especially in the case when a share of the inheritance denied by a will is claimed.
But what if in the division you do not receive the amount due? Accounts must be done carefully, because in this case the Civil Code provides that one can contest this contract only if the "injury", the difference between the amount due and the amount obtained, is higher than the fourth.
The same rule is applied in a number of other contractual ways by which you can decide to end a joint ownership, whether hereditary or not: these are the so-called acts similar to the division, including for example the simple sale of share in which one of the co-owners decides to be "liquidated" by one or more co-owners in order to obtain money and get out of communion of property.
The road to an agreement can be long at times, so much so that we can assume also partial divisions (the so-called estate division amounts settlement) or divisional advances where you give a sort of advance of the division assigning an asset to a co-heir and returning the "final" calculations at a later time.
The notary competence can help you face this complex issue.
You can contact our office and we will be happy to provide you with all the details and the possible solutions to avoid unnecessary family discussions or to put an end to those that may have already started.