We recently helped a client on inheritance issues. Specifically, one of our clients asked us how to renounce his late father's inheritance in Italy, as debts exceeded credits.
The deceased father lived in Italy and was an Italian citizen. On the other hand, our client is both an Italian and British citizen and he is, also, a parent of minor children who are British citizens and residents of the UK. In view of the above, our client would like to renounce for himself and his children the inheritance.
Therefore, the case addresses issues that arise on the applicable national law:
- to the inheritance and, therefore, also to the rules on devolution or waiver of inheritance.
- to the exercise of parental responsibility and, therefore, to the minor's power to accept or renounce the inheritance.
Italian law applies to inheritance and, therefore, also to the rules on devolution or waiver of inheritance.
The same consideration doesn’t apply for the exercise of parental responsibility. The issue, in this case, is not governed by Italian law, but by the national law of minors, and thus by English law.
Consequently, Italian law does not apply and protective measures are governed by the Hague Convention, which refers to the law of the child's habitual place of residence. Therefore, in this case, English law applies, specifically the Family Law Act of 1986 and the Children Act of 1989.
Under Italian law, if the deceased had contracted numerous debts during his or her lifetime, his or her heirs may waive the inheritance. Otherwise, if the heirs accept purely and simply and without benefit of inventory, they will be required to pay the inherited debts and bequests even if they exceed the value of the assets received. When a parent renounces, the children will take over the share of the inheritance (which means that debts will pass to the children), and minor children do not have the opportunity to decide for themselves whether to accept or renounce the inheritance.
Parents may renounce, on behalf of their children, the inheritance only in cases of lesser necessity or for the obvious benefit of the child, subject to the authorization of the protective judge who has verified the existence of such conditions.
In this case, parents must file a petition with the Family Court (in Italian "Giudice Tutelare") of the child's habitual place of residence. The parents must set out the circumstances of the inheritance and prove the absence of assets or the presence of debts, to justify the request to relinquish the inheritance.
On the other hand, according to English law, when the inheritance is insolvent, there is nothing to disclaim. The estate would be administered by the personal representative, who would collect assets and pay debts in accordance with the Insolvency Act. Therefore, no liability would pass to the beneficiaries, so there would be no need for them to do anything.
We know that this topic and type of application is not infrequent. Just recently, we heard about an applicant parent who filed a petition concerning his son, habitually resident in the UK, seeking permission from the English Court to accept - on behalf of the child - the succession of a French estate and to enter - also on behalf of the child - into a contract of purchase and sale in relation to a property abroad.
The English Family Court issued an order authorizing the parent to accept the inheritance and to enter into a sale and purchase agreement, holding that such acts to be performed on behalf of a minor constituted an aspect of parental responsibility under the Children Act 1989.