Mortis causa successions in the tavular system

Succession in the tavular system

INTAVOLATION OF PROPERTY RIGHTS FOR MORTIS CAUSA PURCHASES

The special Tavolare system of property publicity in force in the Autonomous Province of Trento, governed by Royal Decree no. 499 of 28.03.1929 and based on the principle of intavolazione and predecessor tavolare, provides that the heir or legatee, although owner from the moment the succession opens, must, if they wish to dispose of their inheritance rights, "have the transfer entered in their name in the land register" (art. 3 of the Royal Decree).
In the Tavolare sphere, in order to obtain the registration of the right of ownership or other rights in rem received by way of succession it is necessary to obtain a certificate of inheritance, i.e. a decree issued by the Court in accordance with the rules dictated by voluntary jurisdiction (i.e. non-contentious proceedings) which certifies which heirs or legatees are entitled to the property and the relative shares of ownership and which constitutes the only valid title, together with the decree issued by the Tavolare Judge, to register the mortis causa rights in the land register.

THE CERTIFICATE OF INHERITANCE

The issue of the certificate of inheritance is regulated by arts. 13 et seq. of Royal Decree no. 499 of 28.03.1929. The procedure for obtaining the certificate of inheritance is opened with an introductory petition, which must be signed personally by the heirs/ legatees and which, pursuant to Article 13 of the Royal Decree, must be submitted to the monocratic Court of the place where the succession opened, i.e. the place of the deceased's last domicile (Art. 456 of the Civil Code).
If the succession has opened outside the territories where the tavular system is in force, the competence to issue the certificate of inheritance lies with the monocratic Court of the place where the deceased's property subject to the tavular system, or the majority thereof, is located.

The competent offices :
In order to identify the competent Tavolare Office, reference must be made to the cadastral municipality where the property is located (C.C.).
The competent courts with reference to the Land Register Offices in the territory of the Province of Trento are:

1. TRIBUNALOF TRENTO (Land Register Offices of Borgo Valsugana, Cavalese, Cles, Fiera di Primiero, Fondo, Malè, Mezzolombardo, Pergine Valsugana, Tione di Trento and Trento)
2. TRIBUNAL OF ROVERETO (Land Register Offices of Rovereto and Riva del Garda)

Persons entitled to apply for the certificate of inheritance

Pursuant to articles 13 and 22 of the R.D. anyone who has inheritance rights", therefore, the heir on the basis of legitimate inheritance, the heir on the basis of testamentary inheritance, the coheir within the limits of their share (in this case a certificate of partial inheritance will be issued), can propose the appeal for the issue of the certificate of inheritance/legacy the legal representatives of minors, interdicts, incapacitated persons and legal entities, the attorneys with power of attorney issued by the interested parties and the Notary authenticating the signature of the heir, both with power of attorney appended in the margin or at the foot of the appeal.
The appeal must be signed personally by all the heirs and the relevant signature must be authenticated by a Notary Public or a lawyer - in this case by means of a 'real signature' - after ascertaining the identity of the signatory (in fact, pursuant to Article 474 of the Civil Code, the appeal is recognised as express acceptance of the estate). Administrative forms of authentication are not permitted since the appeal is addressed to a judicial body.
Third parties who have an interest in the inheritance may also apply for the issue of the certificate of inheritance if the called party has accepted the inheritance (art. 13 bis ).

The documentation to be attached to the appeal

testamentary succession (art. 14 R.D.):

• death certificate of the testator
• certified copy of the will or minutes of publication of the holographic or secret will;
• family status, in order to establish the existence of any legitimators, any waiver of other persons called to the estate;
• declaration of inheritance, to be made within a year of the death of the deceased at the Revenue Office of the place of the deceased's last residence.

Legitimate succession (Art. 15 R.D.):

• death certificate of the testator;
• family status or deed of notoriety showing his relationship with the deceased;
• possible deed of waiver of inheritance (art. 485 of the Civil Code), to be made within three months of the opening of the succession;
• declaration of inheritance, to be made within one year of the death of the deceased at the Revenue Office of the place of the deceased's last residence.

Pursuant to Article 15 of the Royal Decree, the appeal must contain a declaration as to whether or not a dispute over the right to inheritance is pending.
The judge hearing the appeal will issue or deny the certificate by reasoned decree (art. 17 of the Code of Civil Procedure).
The certificate of inheritance may be revoked, also ex officio, if it turns out that the right to inherit does not exist in whole or in part (art. 20 of the Code of Civil Procedure).
The certificate of inheritance issued in this way gives rise to a legal presumption of heirship for all purposes (art. 21 R.D.), i.e. it establishes, following a judicial investigation, a legal presumption of heirship.
Similar provisions apply to the issue of the legatee certificate: in this case, the testator's death certificate and an authentic copy of the will must be attached (art. 22 R.D.).

THE PETITION FOR A BEQUEST

Once the certificate of inheritance has been obtained from the Court, the heirs must submit the appropriate telematic plat application, to which the following documents must be attached

1. certificate ofinheritance in digital copy, conforming to the original
2. declaration of inheritance (Form 4) (digitally signed copy) proving that the taxes have been paid, it being understood that failure to attach the same shall not affect the registration of the right of ownership in the heirs' hands, except for the need to notify a copy of the tavolare decree to the competent Revenue Agency;

In the telematic tavolare application the following must be indicated in the appropriate fields

• the details of the applicants (APPLICANTS), complete with name, surname, date and place of birth, tax code and full address
• the personal details of the deceased (APPLICANT),
• in the REQUESTED field, the cadastral details of the property to be transferred with indication of the cadastral municipality (C.C.), the number of the cadastral lot (P.T.), as well as the number of parcels/material portions.

On the property thus identified, again in the ASK field, a request must be made for the registration of the right of ownership of the heirs on the share due to the de cuius in favour of the heirs/heirs with the shares appearing in the certificate of inheritance, as well as registration of the right of habitation/usufruct in favour of the owner, if provided for in the certificate.
On the basis of the certificate of inheritance the cancellation of the right of usufruct/housing registered in favour of the de cuius and possibly extinguished pursuant to section 979 of the Italian Civil Code may also be requested.
In the application for a certificate of inheritance, a request must be made in the appropriate fields for the notification of the decree to the heirs/heirs or to the domiciliary in the case of the appointment of a delegate for the purpose of the notification of the decree of inheritance made in the appeal for the issue of the certificate of inheritance (usually the Notary or lawyer authenticating the signatures of the appeal).
The plat application prepared in this manner shall be digitally signed by the declarant (heir if equipped with a digital signature or by the delegate in the event of appointment in the certificate of inheritance or by a separate deed, of a delegate for the presentation of the plat application) and submitted to the competent plat office according to the location of the real estate included in the estate.
On the basis of the application, accompanied by the required documentation and in accordance with the state of the estate existing at the time of submission of the application, the land registry judge, after checking the validity of the certificate of inheritance produced, shall order the registration requested, by issuing the land registry decree whose effects shall be retroactive to the time of submission of the application.
On the basis of the tavolare decree signed by the judge, the prescribed inscriptions are then made in the ledger and finally, to complete the tavolare procedure, the tavolare decree is notified to the parties pursuant to article 123 L.T..