Hereditary debts must be kept separate from hereditary burdens. The former are in fact related to obligations that the deceased has contracted in life or, better to say, by the date of death. The hereditary burdens, on the other hand, are debts or obligations that arise precisely because of the death of the deceased (such as, for example, inheritance costs, funeral expenses, etc.).
What are the debts that are not inherited?
The law on succession provides that the bonds, which also include debts, are transmitted by inheritance, with some exceptions. In particular, they do not inherit:
- debts of a strictly personal nature, or those obligations that can only be paid by the person of the deceased. These never include pecuniary debts (those whose payment must be made against a cash outlay);
- sanctions: these must be kept separate from the taxes that led to their accrual. So if a debt is not prescribed (including a PushQual role), the heirs who accepted the inheritance will be required to pay the tax but not the relative sanction;
- fines for traffic offenses: these must be contested by showing the death certificate of the holder of the fine.
When do you not pay your debts?
An heir may not pay hereditary debts only if the inheritance is not accepted. In this way, by not taking over the hereditary axis, it does not take on any debt. This is a possibility to be followed logically when the debts exceed the assets that can be inherited.
Then there is the acceptance with the benefit of inventory which offers the heir the possibility of not confusing his own patrimony with that of the deceased. In fact, when assets are inherited, they enter the personal estate of the heir and the same happens for debts. To keep credits and debts separate, responding to debts only with the value that has been inherited, then acceptance with the benefit of the inventory is the only way forward.
When deciding to accept or not accept the inheritance, however, it must be borne in mind that if you have children, you will pass on the share inherited to the latter. In this case it is necessary to inquire at qualified structures (or competent professionals), proceed with caution and possibly contact the juvenile court to ask that their children are also excluded from this possibility.
To avoid this situation, one can accept with the benefit of the inventory, knowing, as mentioned, that the balance between debt and inheritance assets will be reduced to zero.
How to make acceptance with inventory benefit
The request must logically be made by the heir who wishes to make use of it directly to the clerk of the competent court who will have the task of drawing up an ‘ad hoc’ report to formalize the will of the applicant himself. The latter, on the other hand, must submit the application for the preparation of the inventory thanks to which the debts / credits balance sheet will be calculated.
Another issue that can sometimes be unclear is who pays hereditary debts and to what extent. In fact, the issue of “joint and several” payment or referring to a “pro quota” contribution may remain alive.
In case of absence of will
If the deceased has not left a testament, then by law the heirs take over the debts for the same share with which they take over the property of the deceased. So if your quota is 50% you will have to pay 50% of your hereditary debts and hereditary weights.
For example, do you have to pay the mortgage payment, the waste tax and repay a de cuius loan? Only 50% of each debt will have to be paid. If the other heir does not pay his 50% share, the creditors will not be able to contact the fulfilling heir, because there is no solidarity between the various heirs.
The only exception is for mortgages for which passive solidarity exists. In this case, the creditor can also contact the heirs or start the attachment procedure, etc.
With a properly drafted will
Instead, it may happen that the deceased left the will stating that:
- the debts are repaid by a single heir (which must however be justified in view of the division of assets carried out in the will which must take into account the legitimate share);
- there is passive solidarity in the event of default: in this case the heirs will be co-obligated.
However, the law provides for the possibility that the heirs may derogate from the participation of hereditary debts pro quota with personal agreements, which however must be accepted unanimously. This possibility occurs both in the case of division of the voluntary quota and in case of judicial division.
In the case of logically prescribed hereditary debts, the heir is not obliged to pay them. Like other debt situations subject to possible prescription, however, it is necessary to check whether the deceased has received official communications (primarily recommended, formal notice, etc.) that may have interrupted the terms.