The transmission of assets to the State: the different European models and the innovations in the Italian legal system.

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Autor: Antonio Albanese, Professore Associato, Alma Mater Studiorum Università di Bologna

The succession of the State has always been a debated topic, in both national and international law. Furthermore, it is linked to the further question concerning the efficient management of assets acquired by the State by succession mortis causa, also in order to facilitate the destination of the proceeds in favor of the community. In European legal systems, the issue of state succession involves a gap between models: the main question is if the State acquires properties as a final heir or on the basis of the principle of territorial sovereignty. Some models, such as the French one (also adopted outside Europe, think of the Brazilian Civil Code of 2002) follow a publicistic perspective, which has as its reference ideas the consolidation of eminent domination and a privileged occupation based on sovereignty and the concept of “munus publicum”. In France, assets without an owner are transmitted to the State not as the last heir, but because its publicistic droit de police générale also gives it a droit de déshérence (TESCARO, Fiscus post omnes. La posizione subalterna dello Stato erede nella dinamica della successione mortis causa, Milano, 2022, p. 13 ss.). Other models, such as the German and Spanish ones, instead embrace the private law thesis, which sees the State as a real legitimate heir (albeit a “sui generis” one and placed in last place among the legitimate heirs).

The second theory is also prevalent in Italy, both in doctrine and in jurisprudence. In the Italian legal system, if there are no relatives beyond the sixth degree of kinship, the inheritance is transferred to the State, whose acquisition works by law without the need for acceptance and without the possibility of waiver; as established in art. 586 of the italian Civil Code, provision for the closure of the succession system due to death. The transmission “ipso iure” deviates from the general rule according to which the inheritance is acquired with the acceptance; the automatic nature of the acquisition, on the other hand, makes it impossible for the inheritance to be accepted with the benefit of inventory and renders the rule of art. 473 of the civil code inaplicable (the article states that legal entities are obligated to accept with the benefit of inventory), it also renders inapplicable the rule of art. 480 on the statute of limitation of the right to accept the inheritance. At the base of the return to the State is the same collective reason that presides over the entire succession phenomenon “mortis causa”: to avoid a vacancy in the ownership of assets and the extinction of legal relationships. Indeed, the first requirement, with reference to property, refers above all to movable property, because buildings never become “res nullius”: when “they are not owned by anyone, they belong to the patrimony of the State” (art. 827 Italian civil code).

The State is not responsible for debts and hereditary legacies that exceed the value of the acquired assets. The analogy with the provisions of art. 490, no. 2 of the Civil Code, which establishes the limited liability of the hereditary patrimony for the heir who has accepted it with the benefit of inventory, is obvious. The State has, then, “ipso jure”, the prerogatives that the law links to the condition of beneficiary heir: it avoids the confusion of assets and follows the limitation of liability “intra vires hereditatis” and “cum viribus hereditatis”.

However, the reason for this limitation of liability is different and peculiar, since in the case at hand it must be read precisely in relation to the aforementioned art. 586 of the civil code that has the character of a termination clause of the system. The State becomes the heir even if the inventory is not completed, the lack of which may constitute nothing more than a difficulty of proof, never a cause for expiration of the limitation of liability. The State does not have the possibility, granted to the heir who benefits from art. 507 of the Civil Code, to get rid of any hereditary debt simply by transferring to the creditors and legatees all the assets received by way of succession. Such a possibility would annul the very reason for the succession according to art. 586 of the civil code. One of the practical consequences that derive from the assumption of the condition of heir by the State is the observance of the bankruptcy procedure, inspired by the principle of “par condicio creditorum” (art. 498 and following of the Civil Code), for the payment of hereditary debts and for the satisfaction of legacies.

The relationship between the succession of the State and the institution of the unclaimed inheritance (“eredità giacente”) is problematic. It is a relationship which is affected by the different approach adopted regarding the nature, public or private, of the State succession.

Not even the EU Regulation n. 650 of 2012, art. 33, solves the problem of the nature of the State’s, but the two theories cause significant effects in cross-border succession cases. In fact, the State’s right to assets is determined by the theory recognised by the law applicable to succession (for questions still unanswered, VAGNI, La successione dello Stato.

Profili di diritto comparato ed europeo, in Diritto delle successioni e della famiglia, 2018, 1, p. 283 ss.). Scholars support the possibility of opening the guardianship only when there is a person, already identified, that has not yet decided whether to accept or resign. In the event that the existence of heirs is unknown, the succession of the State is opened. Judges, however, sometimes lean towards a broader interpretation, according to which the institution of the inheritance will be effective even if a person who is unknown or whose existence is unknown in life is called to the succession. Seen more closely, the phenomenon can be analyzed both from an objective point of view inherent to patrimony and from a subjective point of view of those called to inherit. In the first place, there is the need for administration, in a conservative function, of hereditary assets; Secondly, however, the interest arises from the fact that the person called has all the necessary time to decide on the advisability of assuming the quality of heir and ownership of the assets: therefore, the interest in protecting the right to choose of the addressee and their autonomy. Perhaps due to this ambivalence of the functions, the relationship between the succession of the State and the opening of the unclaimed inheritance (“eredità giacente”) has sometimes given rise to misunderstandings: it must be considered that the unclaimed inheritance is opened only when there is an already identified recipient (that has not still decided whether to accept or give up and is not in possession of the assets). On the contrary, art. 586 of the Civil Code operates: a) in cases where the known relatives of the deceased cannot be located; b) in cases of known relatives who, however, cannot or do not want to accept the inheritance (due to unworthiness, resignation, limitation of the right to accept, etc.). Regarding the case a), the State can acquire the inheritance immediately, without opening the conservatorship, provided that it proves the probable non-existence of other successors.

This purchase will be precarious until ten years have elapsed from the opening of the succession, when it will become final due to the passing of the statute of limitation on the right to accept. If, on the contrary, a person appears and exercises his own right of acceptance, not yet prescribed, the transmission to the State will cease retroactively. Particularly delicate is the hypothesis of renouncing the inheritance, since art. 525 of the civil code admits the revocation of the waiver, but the denouncement of the State could compromise the power of those who had renounced to make a subsequent acceptance. In this case, the renouncers will retain the right to accept the inheritance until the State claims it on the basis of proof that there are no other successors.

Recently, Sections 1008 and 1009 of article 1 of law No. 178/2020 and the ministerial decree No. 128/2022, intervened to simplify and bring flexibility. Paragraph 1008 of art. 1, l. no. 178/2020 intends to solve the problem of identifying the person competent to manage assets other than real estate inherited from the State pursuant to art. 586 of the Civil Code. This subject is identified in the State Property Agency, which is entrusted with “the management and enhancement, in addition to the functions already exercised in relation to real estate, movable property, securities, bonds, company shareholdings, shares mutual funds and other transferable securities, credits and rights and intangible assets”. The State Property Agency therefore becomes the only competent body to manage all assets, not only real estate, but also movable property (with a list of the latter which should not be mandatory). Paragraph 1009 of art. 1, l. no. 178/2020, entrusts to a decree of the Minister of Economy and Finance, in agreement with the Minister of Justice, the determination of the “criteria for the acquisition […] of relevant data and information for identifying assets” and “the preparation of a special telematic system”. With the d.m. 20 June 2022, no. 128, which is made up of eight articles, the 1009th paragraph of art. 1, l. no. 178/2020, providing that the State succession can occur both at the end of the “eredità giacente” and in the absence of this procedure. The Ministerial Decree, in fact, distinguishes between assets deriving from an unclaimed inheritance (articles 3 and 4) and assets transferred directly to the State without opening the unclaimed inheritance (Article 5). In the first case, “the clerk of the court […] communicates to the State Property Agency, within ten days of its adoption, the provision of appointment of the trustee, together with the identification data and the tax code of the trustee and of the deceased”.

The trustee of the unoccupied inheritance, in turn, is required to transmit to the State Property Agency, “within six months of the appointment, a provisional list of the hereditary assets” (art. 3, paragraph 2°), and, “in the case devolution of the inheritance to the State pursuant to art. 586 of the Civil Code, within thirty days of the closure of the pending inheritance procedure, […] the [definitive] list of hereditary assets” (art. 3, paragraph 3°), providing the documentation indicated in art. 4 (“copy of the inventory, of the report, of the provision for closing the pending inheritance procedure, of the provision of devolution of the hereditary assets to the State, of any note of transcription in the public registers and of the transfer”). On the other hand, in the hypothesis of the purchase of the assets by the State without the procedure of the unclaimed inheritance, it is foreseen (art. 5) that “the clerk’s office of the district court in which the succession was opened, the notary, the Municipal administration and the Revenue Agency, where they become aware of it for official reasons, communicate to the State Property Agency, within the following thirty days […], the identifying elements of the assets donated to the State and any other information relevant, for the purpose of identifying the goods themselves”.

The right of the State is not subject to statute of limitation: since the succession occurs automatically, art. 480 of the Civil Code doesn’t operate; the State is therefore immediately heir and the “semel heres semper heres” principle applies. However, the usucapion can be opposed to the State. In accordance with art. 1163 of the Civil Code, possession acquired in a violent or clandestine manner does not benefit usucapion unless the violence or clandestine behavior has ceased. The purchase according to art. 1158 of the civil code postulates objective inertia on the part of the owner or holder of a real right and the acquisition and exercise of possession by the third party in a public and peaceful manner.

On the basis of the principles that govern the usucapion, therefore, the inertia of the State and the ignorance of the purchase would not prevent the course of the usucapion and even less could constitute a situation of clandestine possession. In recent times, the Italian legislator has been concerned with guaranteeing the State the effective exercise of succession rights and avoiding their extinction in favor of third-party owners. The inspiring reason for the intervention of the legislator is to avoid the loss of acquired rights, in accordance with art. 586 of the Civil Code, on assets that the Administration is not even aware of having acquired. The art. 1, paragraph 260, of law no. 296 of 2007, aims to remedy the dysfunctions linked to the lack of adoption of adequate measures imposed on the State, which must carry out all activities, of an administrative and organizational nature, aimed at acquiring data and relevant information to identify vacant assets in the national territory. (In particular, the non-payment of taxes related to the property, which lasted for a considerable period, implies that the State must carry out the necessary verifications on the omitted payment by the subject who is the cadastral owner of the property: what that would make it possible to know the factual and legal situation of the property itself). Thus, by virtue of the aforementioned new provision:  “for the purposes of returning vacant assets or assets from vacant inheritances to the State, the Minister of Justice, in agreement with the Minister of the Interior and the Minister of Economy, determines, by means of a decree that will be issued within a period of six months from the entry into force of this law, the criteria for obtaining the relevant data and information to identify the assets that are unclaimed or unemployed in the territory of the State”. The subjects exercising real rights on the assets (“possessors”) must notify the “Agenzia del Demanio” (State Property Agency) that they are in possession of the assets deriving from vacant inheritances. In this communication the properties must be described with an indication of the cadastral data. The aforementioned precept therefore introduced into the legal system a new discipline of useful possession “ad usucapionem” in relation to vacant assets and unclaimed inheritances of which the State has become the owner by virtue of art. 586 of the civil code. In effect, the rule not only imposes on the person who exercises possession of vacant assets or assets derived from unclaimed inheritances the burden (previously non-existent) of notifying the Agency but, by making the execution of this compliance subject to the term necessary for the usucapion, has provided for a new case of defect of acquired possession of the goods in question, which is added to those provided for in art. 1163 of the civil code. On the contrary, according to the regulations in force prior to the modification made by art. 1, co. 260, of Law 296/2007, there was no obligation on the part of the owner to notify the administration of his possession and the fact that the latter was unaware of the transfer of the property did not prevent the expiration of the term for the usucapion (Cass., January 26, 2010, No. 1549).

Apart from the cases examined above, nothing prevents the testator from establishing the heir State in all or in part of his property. The quality of testamentary successor entails, therefore, the inapplicability of the particular discipline provided for within the legitimate succession, so that the State may, like any other named, accept or renounce the inheritance or legacy. If the S accept, however, you must do so with the benefit of inventory pursuant to art. 473 of the Civil Code: in fact, if it is called by virtue of a will, it is subject to the general rules established for successions mortis causa of legal persons, for which, as for the incapacitated, the acceptance of the beneficiary is mandatory (except for companies). Consequently, the problem of the effects of a possible non-benefited acceptance also arises; and it is a question of understanding, in particular, if the particular rule provided for the legally incapacitated heir is applicable, for which the terms of the (mandatory) benefited acceptance are extended up to one year after the cessation of the state of incapacity (art. 489 of the Civil Code), so that until then, even if his legal representative has purely and simply accepted, the incapable is considered called ex art. 460 of the civil code and retains the right to accept the inheritance with the benefit of inventory (unless the statute of limitation of the right to accept has intervened or the interrogatory action has been exercised against him). However, it seems that the exceptional solution of the exclusion of the expiration of the inventory benefit cannot be extended to legal persons: in this case, the rule inherent to the incapable is not applied, which is based on their possibility of becoming capable in a second moment. Being that the only form of acceptance provided for is, in this case, that with the benefit of inventory, the legal entity that has fulfilled the acceptance benefited, but has not followed the drafting of the inventory within the three months prescribed by art. 487 of the Civil Code, he does not become an heir pure and simple, but radically loses the right to accept the inheritance (Cass., September 29, 2004, n. 19598).

The circumstance that the State, which is a testamentary heir, can only accept with the benefit of inventory, excludes the admissibility of tacitly accepting: the obligation imposed on legal persons to accept the inheritance with the benefit of inventory implies that the acceptance must necessarily be express, so that a tacit acceptance does not determine the acquisition of the inheritance (Cass., October 19, 1998, n. 10338). If there is multiple hereditary succession, the part attributed to the State will also become part of the co-inheritance, provided that the testator has not prevented the formation of the hereditary communion, with the attribution of singular assets, in accordance with the art. 734, c. 1, civil code. For a co-inheritance to be formed, in effect, the presence of a plurality of heirs is necessary and sufficient s. On the other hand, a communion between the heirs and the State cannot be configured if the latter has been the recipient of a legacy: in the case of a specific legacy, the assets are transferred directly to the legatee State; for the other legacies (“legati di genere”), an obligation arises that is incumbent on the heirs, and the obligations do not fall in community of inheritance. On the other hand, communion between legatees is only possible when the same object is attributed to several legatees; but it is outside the scope of the inheritance community. If the State, instituted heir by will, accepts, and a situation of coherence or community of heirs arises, the regulation of relative inheritance debts will be governed by articles 752 and 754 of the Civil Code: the automatic distribution of debts and of hereditary weights, sanctioned by these rules, implies that the co-heirs must not be held accountable jointly and severally, and therefore each one for the whole, but, both shall be liable, in internal and external relations, limited to their own hereditary part. If, on the other hand, the State is the only subject designated in the will, but renounces the inheritance, it may happen that, in the absence of other successors, it takes over the succession in application of art. 586 of the civil code, which would find full application.

From the hypothesis of the testamentary successor State which contributes to the succession with other calls (by law or by will), the hypothesis of the co-heir State which becomes such in the absence of other calls within the sixth degree must be distinguished: by virtue of the coexistence between testamentary vocation partial (in favor of others) and legitimate vocation (in favor of the state). In this case, articles 752 and 754 of the civil code will also apply in the event of communion of inheritance between the State, as the only legitimate heir, and the subject designated by the will; and the State can oppose the benefit of the division of debts to the creditor who demands full payment. However, in this case the State cannot renounce and will pay the debts, as well as within the limits of its share of the inheritance, also “intra vires” and “cum viribus hereditatis”.

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