Acceptance of the inheritance by the Ecclesiastical Body

Ecclesiastical Bodies (EE) are often appointed heirs by the faithful and, therefore, receive bequests from benefactors who intend to contribute to the Church’s agenda (Canon 1261 – §1: “The faithful are free to donate temporal goods for the benefit of the Church”). 

In this regard, however, specific Italian rules are in force, which differentiate the Italian legal system from other legal systems (and specifically from those of Common Law and of the Anglo-Saxon tradition).

In this article, we offer an initial examination of the rules to be taken into consideration, so that the EE can approach the subject without risk and in compliance with the rights of others.

The possibility to accept the inheritance and its nature as an act of extraordinary administration

Before examining the regulations in the Civil Code, it is useful to remember that according to canon law the “Church can acquire temporal goods in all the just ways of both natural and positive law, in the same way as anyone else” (Canon 1259).

Therefore, given that inheritance is one of the most common ways of acquiring property, the Ecclesiastical Body that receives a testamentary bequest may well accept this bequest, as well as acquire the status of heir of the deceased. 

This act (the acceptance of the inheritance) is typically, for secular law, an act of extraordinary administration.

Furthermore, these types of acts, as we saw in a previous article, would normally require some specific authorizations from the legal representative pro tempore of the EE. 

In fact, the EE or Religious Congregations bylaws may establish that certain specific acts are considered acts of extraordinary or ordinary administration (“it is up to the actual law to determine, within the scope of universal law, which are the acts that exceed the limit and the modalities of ordinary administration, and to establish what is necessary to validly place an act of extraordinary administration” – Canon 638 – §1). Therefore, one must proceed with the examination of the individual bylaws, but, in case of interpretative doubts, one must consider the acceptance of the testamentary bequest as an act of extraordinary administration to avoid that the act itself is declared invalid or ineffective.

Legitimate share

With respect to Italian law, the first rule to be taken into consideration is that established in Articles 536 and following of the Civil Code.

In fact, Italian law on the one hand provides in abstract the opportunity for the deceased to appoint anyone as their heir – even for the entire estate – by means of a will, but on the other hand, it also provides protection for the people closest to the testator (for example children, parents and spouse). In fact, the latter have the right to challenge the will, when they believe the so-called “legitimate share” has been violated. 

The latter is a portion of the deceased’s assets, variable according to the number of heirs, which is by law reserved for the subjects indicated above. If these subjects, therefore, feel adversely affected by the testamentary provisions of the deceased, they will be able to take action based on “legitimate injury,” and therefore reduce the legacy that the faithful has left to the EE through the so-called reduction action.

As one might understand, this eventuality can be very burdensome for the EE, specifically if the latter has started to dispose of the assets received as an inheritance.

In the event that the EE is appointed as heir, the most appropriate thing to do is therefore to define the relationship with the other heirs as soon as possible, so as to make the legal relationship between the parties who are set to inherit certain.

Failing this, the heirs to whom the legitimate share is reserved (the so-called legitimate holders) will have up to ten (five, in the case of some specific reasons such as the incapacity of the testator) years to challenge the will. Therefore, if the relationships between the heirs are not explicitly defined, certainty cannot be obtained before ten years have passed.

Precisely for this reason, the EE or the Religious Congregation that was appointed heir, or that in any case received a testamentary bequest, should immediately take action to verify whether:

– the testator has children or a spouse or in any case other heirs;

– the legitimate quota reserved for the latter has been violated.

This first step is essential in defining a defensive strategy in the event of a dispute by the legitimators. It is real preparatory work that also requires an investigation of the deceased’s patrimony. In fact, if it were shown that the testator’s assets are in any case sufficient to satisfy the legitimate share reserved for the other heirs, the EE would be protected from future restitution requests.

Mediation between heirs

Of course, even if the information collected by the EE in perfect good faith shows that everything is in order and that the EE can serenely accept the testamentary bequest, particularly contentious legitimate heirs who intend to appeal to the judicial authority still may be found.

In these cases, a very effective solution is that of mediation in the matter of inheritance successions, provided for by Legislative Decree no. 28/2010. 

This is not a judgment, but instead an actual meeting in which the parties, assisted by a mediator, try to settle the dispute amicably. Once the agreement has been reached, it will be attached to a report, which will have full legal value between the parties. It will be put it into effect if the other party fails to comply with the agreement.

At this point, an excellent solution would be to rely on professional mediators at institutions such as CAEE® (Conciliation and Arbitration for Ecclesiastical Entities), a system built specifically for Ecclesiastical Entities, where the mediation procedure can be carried out in a short period of time and required by sector regulations.

The debts of the deceased 

The circumstance of being appointed heirs can sometimes bring nasty surprises.

In fact, the estate of the deceased is not simply transferred to the heir, but “merges” with the estate of the latter… including the debts of the testator! In fact, if the testator’s estate also has a passive and not only an active part, the heir will have to answer for these debts.

In truth, this situation is not atypical and does not necessarily have to be a reason for stigmatization: for example, consider the case of a person with a solid estate who, however, passes away while they still have car payments to make. The remaining installments are “debts”, but are certainly covered by the remaining assets of the deceased.

The problem, therefore, arises when the liabilities of the testator’s estate exceed that of their assets. In this case, the heirs entitled to the inheritance (including testamentary ones as in the case of the EE) who accept the inheritance itself are called to answer for the residual debts that cannot be honored with the active assets of the testator.

Therefore, specifically for legal entities such as ecclesiastical bodies or religious congregations, it is appropriate to accept the inheritance with the benefit of inventory: a method of accepting the inheritance that allows those who make use of it to keep their assets distinct from that received as an inheritance. 

Basically, in the event that there were debts of the deceased not honored at the time of death, the heir who accepts with benefit of inventory will have to satisfy the debtors only with the assets of the deceased (which is precisely “inventory”) and not with their own assets.

This is a real separation of the assets – which are therefore no longer subject to merger – that entails the undoubted advantage of being able to accept the inheritance without worries, including any “surprises.” This ensures that the discovery of the deceased ‘s large debts do not affect the EE’s assets, which therefore can specify that the testator’s creditors be satisfied only with the assets or sums that have been left as a testamentary bequest.

Finally, it should be remembered that also in this case it is good to act promptly, distinguishing between the hypothesis in which the assets are already in the possession of the heir or not. In fact, in the event that the assets are already in the possession of the EE (think of the possibility of a property held by the Entity in lease as a seat or place where it carries out assistance and / or charitable activities, and that, at the moment of his/her death, the owner leaves this property to the EE itself by testament), the inventory must take place within 3 months of the death of the deceased, otherwise one is considered to accept the inheritance unconditionally with the consequent patrimonial merger seen above. 

If, on the other hand, you are not in possession of the goods, the declaration of acceptance with benefit can be made within 10 years. In both cases, however (both if you are in possession of the goods and if you are not), once the inventory has been made, you must accept the inheritance with benefit within 40 days following the completion of the inventory, otherwise one is considered to accept the inheritance unconditionally.

If you wish to discuss the issues highlighted in this article in greater detail, or need advice because your Congregation has been appointed heir, you can contact us at info@dikaios.international or at +39 06 3671 2232.