Closest equivalent rights and adaptation

1. What are the main rights in rem arising from successions in your system?

When the succession is based on the will, the decedent distributes his stake on his own, only limited by the reserved shares, which are portions of the estate which need to be specifically given to the closest relatives.

In the event that no will is written by the deceased. The law establishes supplementary rules for the distribution of the estate.

In addition, the surviving spouse according to article 540 of the Codice Civile, has the right to use and inhabit the family home. The use of the family home by the surviving spouse is considered as a real right according to our national law.

All this facts are taken into account by the judge (never the notary)  who issues the certificate. Then the certificate is presented in the Land registry for registration, and as said, it can cause directly an inscription in favor of the heirs.

2. What would the role of your Land Register or registrars be in order to put in practice the principle of adaptation? What contributions could the Land Register make?

In our system the rights in rem arising from a succession are a “numerus clauses”.

The application of principle of adaptation contained in art. 31 of the Regulation and above described will be interpreted case by case by the Land Register Judge.

Certainly, no precedent experience exist in our country, but we can confirm that any decision over the adaptation of a certain foreign real right to our specific internal law will have to be taken by the Land register judge when the certificate is presented for registration. For that purpose, the judge will take into account the national legislation integrated with the European one.

• Imagine you receive a request for the registration of a foreign European Certificate of Succession. It follows from this Certificate that one of the heirs is entitled to a right that is not part of your national numerus clausus. How do you approach this problem?
  We did not have any case since now. If we had a similar case, after the “Kubicka” Judgment of the European Court (second chamber), we would probably register the right that approximates the one entitled by the Certificate.