Succession Without a Will: shares, hereditary co-ownership, and forced division

Introductory Overview

When a person dies without leaving a will, the law provides for an automatic succession mechanism, known as intestate succession (successione legittima), governed by Articles 565 to 586 of the Italian Civil Code. In such cases, the estate passes to relatives according to a predetermined order, with attribution of the respective legal inheritance shares.

The absence of a will also gives rise to hereditary co-ownership among the co-heirs, which can last for a long time, especially in the presence of disputes. When the parties cannot agree on the division of the estate, one or more co-heirs may seek a judicial forced division, governed by Articles 713 et seq. of the Civil Code.

The aim of this article is to provide a clear and practical overview of both stages: determining the lawful heirs and their respective shares, and the possibility of forcibly dissolving the co-ownership, with practical guidance on timing, procedures, and risks associated with forced inheritance division.

Intestate Succession: Who Inherits and With What Shares

Art. 565 of the Civil Code provides that the estate passes by law to relatives, the spouse, and, in their absence, to the State. Articles 566 to 586 of the Civil Code govern the order and shares due to each heir based on the deceased’s family composition.

Some typical scenarios:

• Spouse and one child: half each.
• Spouse and two or more children: one third to the spouse, two thirds to the children in equal shares.
• Children only: they inherit in equal shares.
• Spouse only: the entire estate.
• Parents and siblings: shares divided according to degree and line.

This division is not the result of a voluntary choice, but is imposed by Law in the absence of testamentary provisions. The heirs thus identified become co-owners of the estate: a hereditary co-ownership arises, which can only be dissolved voluntarily or, failing agreement, through judicial proceedings.

What Is Hereditary Co-ownership

Hereditary co-ownership means that all co-heirs are joint owners, in proportion to their respective shares, of each inherited asset. By law, each co-heir may dispose of their own right, but may not unilaterally sell or modify individual assets until the co-ownership has been dissolved.

Decisions concerning ordinary management require the consent of the majority of co-heirs, calculated based on the value of their respective shares, while extraordinary decisions — or acts of disposition, such as the sale of real estate — require unanimity.

In this context, conflicts, deadlocks, or defaults frequently arise, especially when there are indivisible assets (such as real estate) or when one or more co-heirs oppose the division.

Each co-heir has the right to:

• request division, at any time (Art. 713 Civil Code);
• jointly manage and administer inherited assets;
• object to the sale of common assets by other co-heirs, in the absence of unanimous consent.

The continuation of co-ownership can lead to managerial deadlocks and financial strain. Failing agreement on voluntary division, it is possible to bring proceedings to obtain forced division.

Forced Inheritance Division: When It Can Be Requested

Art. 713 of the Civil Code grants each co-heir the right to demand the division of the estate at any time, unless the testator has expressly prohibited it (for a maximum of five years under Art. 713, para. 2 Civil Code).

We speak of “forced division” when one or more co-heirs, unable to reach an agreement with the others, turn to the court to obtain the separation of their respective shares. If you find yourself in a deadlock — a co-heir who does not respond, does not appear before the notary, refuses any agreement — Art. 713 Civil Code allows you to act even without their consent. It is a necessary tool when:

• There is repeated refusal to proceed with amicable division;
• There are defaults or obstructive conduct by some co-heirs;
• The heirs cannot agree on the value of the assets or the method of distribution.

How Judicial Division Works

The procedure begins with a petition to the competent court, followed by the appointment of a judge rapporteur. If deemed necessary, the judge may appoint a court-appointed technical expert (CTU) to appraise the inherited assets and assess their divisibility in kind.

If the assets are not conveniently divisible — for instance, an apartment that cannot be divided among multiple heirs — the judge may award the asset to a single co-heir, with the obligation to pay a monetary adjustment to the others (Art. 720 Civil Code); alternatively, the judge may order the sale of the property at auction and the subsequent distribution of the proceeds in proportion to the respective inheritance shares.

During the proceedings, the judge may attempt conciliation between the parties; if unsuccessful, the judge will proceed to form the portions, taking into account the rights of each co-heir.

Special Cases and Frequent Issues

Specific challenges may arise in forced inheritance division proceedings, such as the presence of indivisible assets — for example, a single property or non-divisible agricultural land — or a surviving spouse who holds the right of habitation over the property used as the family home.

If there are minor children among the heirs, every act of division requires prior authorization from the guardianship judge, with inevitable delays to the proceedings. Furthermore, the Civil Code recognises a right of pre-emption among co-heirs, which allows each to redeem a share sold to outsiders by another co-heir. In all such cases, professional assistance from a lawyer is highly recommended, both due to procedural complexity and the potential long-term financial consequences.

Differences Compared to Voluntary Division

In voluntary division, the co-heirs draw up a consensual division deed, usually through a notarial act. This method is generally faster, less expensive, and involves a significantly lower level of conflict.

Conversely, forced division presents several drawbacks: timescales are often very long, especially where complex assets are involved or there is strong disagreement between the parties; legal, expert, and court costs can become substantial; and the outcomes are imposed by the judge, with results that do not always reflect the individual preferences of the heirs.

For these reasons, wherever possible, amicable division remains the preferred solution.

Note: Before proceeding with judicial division, it may be useful to consider a mediation settlement. To understand when it is worth accepting and when it is better to continue in court, see this in-depth article on the advantages, risks, and timing of mediation.

Final Considerations

When there is no will, intestate succession allocates the estate according to precise rules and predetermined shares. If the heirs cannot reach an agreement to dissolve the hereditary co-ownership, the law allows recourse to judicial division, which nevertheless guarantees the protection of individual interests.
However, this is a complex proceeding, potentially lengthy and costly, which requires preliminary assessments and qualified assistance.

Disclaimer: This article is for informational purposes only and does not constitute legal advice. Every inheritance situation requires a specific assessment, to be carried out with the support of a lawyer admitted to the Bar.