What does it mean to take by representation?
What is the principle of representation?
According to Italian law, when an inheritance is left, either fully or partly, to a deceased’s child or sibling who has died before the testator, the descendants of the beneficiary succeed to the inheritance, pursuant to the “right of representation” (articles 467 and 468 of the Italian Civil Code).
The same applies if a decedent’s child or sibling is unwilling to accept an inheritance to which he/she would be entitled, or if he/she is declared unworthy to inherit (art. 463 of the Italian Civil Code).
The person nominated to inherit is called the, “represented”, while his/her descendant who through the represented’s death becomes raised to the place and the degree of the person represented is known as the, “representative”.
Italian law states that the represented person must be a deceased’s child or sibling.
According to the most frequent judicial interpretation, the representation does not take place if the beneficiary is the deceased’s grandchild or nephew (or niece).
Representation takes place in a direct line, namely in favour of the represented person’s children or descendants.
The represented person’s spouse (or civil partner) is never entitled to inherit by means of representation.
The right of representation is valid continuously, regardless of the descendants and their number: if, for instance, a decedent’s child is unable or unwilling to succeed, his/her children will succeed and, if the latter are unable or unwilling to succeed the great-grandchildren will replace them and so on…
What does per stirpes mean for beneficiaries?
In case of representation, the inheritance is distributed per stirpes: the part of inheritance left to those unable or unwilling to succeed (the “represented persons”) is divided among their descendants (the “representatives”). Therefore, e.g. if the deceased person (unmarried and without children) had two siblings and one of them predeceased the testator, half of inheritance should be distributed to the living sibling and the other half should be divided among any nephews/nieces (the deceased sibling’s children) who would inherit 1/4 each.