How to evade the legitimate? Can it be avoided?

evade the legitimate

Before seeing how to evade the legitimate, we must ask ourselves why an heir should want to refuse part of the inheritance that is due to him by law. The cases, as we shall see, are essentially two. The first concerns a situation of indebtedness of the heir, and the second a situation of indebtedness of the deceased relative.

In both cases, the fear is that the creditors of the deceased may retaliate both on the inheritance and on their personal assets, if necessary. Therefore, in the face of these premises, very often one prefers to understand whether or not it is the case to accept the legacy of the deceased, and therefore, legitimize it.

In today’s guide, we will explain everything in detail, so that you can have a clear overview of which actions are in your power and which are, instead, the risks. In any case, being a fairly complex and delicate subject, prudence is a must.

What is the legitimate share?

First of all, before anything else, it is good to specify what is meant by legitimate. The latter is that portion of the patrimony that, by law, must be donated to the closest relatives of the deceased: spouse, children and only in the absence of children also the ascendants.

These family members take the name of legitimate heirs and, in fact, their right as heirs is protected by law. In other words, this means that the testator (the one who writes the will) does not fully and freely dispose of all his assets.

In fact, his wishes only affect the available portion, that portion of assets that he can allocate to whomever he desires. However, it should be emphasized that, in order to be implemented, the will must respect the legitimate share, otherwise, it can be challenged by the injured heirs.

In this regard, it should also be emphasized that the rights of the legitimates are not evaluated only on the assets existing at the death of the relative, but also on the donations that the deceased made in life. Therefore, if, before dying, properties have been donated, which affect the legitimate share of the heirs, the latter will be able to contest the will in question.

This is why, even when you decide to write your will, it is much better to get help rather than being superficial. The shares must be calculated and respected as required by law so that the succession can avoid creating disputes or misunderstandings between the heirs.

How to evade the legitimate?

As we said, the legitimate share is guaranteed by law to the legitimate heirs. Therefore, the testator has no power to avoid leaving this share to his family (except in cases of unworthiness). On the other hand, however, the legitimate holder can:

  • Refuse the legitimate share by renouncing the inheritance;
  • Accept the provisions of the will even if unfavorable to him.

Let’s take a practical example:

Mario has two sons, Gianluca and Nicola, whose second has contracted many debts that he has yet to repay. In his will, Mario donates the only property in his possession to his son Gianluca. In this situation, Nicola could assert his heir rights to get half of the property, but he could also not. In this second case, therefore, the provisions contained in the will made by the deceased would remain valid.

In fact, even if a child cannot be disinherited from the estate, the will would still be applied when the injured heir does not act in court. However, it’s not as simple as it sounds.

To explain the next steps, we will continue to stick to the example above. At this point, since Nicola decides not to challenge the will, his creditors can take his place and challenge the division made by his father Mario.

In this way, therefore, they could seize the assets that Nicola receives from the succession. And this, like it or not, creditors are in a position to do so. Similarly, even if Nicola decides to renounce the inheritance, the creditors could still protect themselves through the appeal for waiver of the inheritance.

The indebted heir, in fact, cannot renounce the inheritance if this decision damages his creditors. The latter, therefore, in one case or another, are in a position to take action to satisfy their credit rights.

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