Seizure of assets: what happens when a property enters into succession?


Emma Potter

In Italy, asset management in the presence of debt can lead to complex situations, especially when these assets are subject to precautionary measures such as seizure. This judicial intervention limits the availability of the property, but it does not alter its property.

A relevant question arises when the owner of a seized asset dies: does the asset enter the succession? And what can the heirs do?

Let us delve deeper into these questions to better understand the implications of judicial seizure in inheritance contexts.

Definition and implications of asset seizure

Seizure is a precautionary measure imposed by a judge on one or more assets of a person, limiting their use without taking away ownership. This constraint can arise from both debt issues and criminal implications.

For example, a seized car remains in the owner's custody but cannot be used for driving. Similarly, the assets of a debtor they cannot be sold or transferredrendering any attempt at disposition towards creditors ineffective.

In summary, the seizure prevents the owner from freely using the asset, but does not alter its ownership.

Seizure mainly manifests itself in two forms, each with specific purposes and regulations.

The conservative seizure it is ordered by a judge when there is a risk that a person could disperse their assets to avoid their financial obligations. This type of seizure can be applied to both debtors and defendants, acting in the second case also as a guarantee for the fulfillment of financial penalties or compensation due.

On the other hand, the preventive seizure it is specifically designed to prevent the commission of further crimes, applying to assets which, if left vacant, could facilitate criminal activity. A clear example is the seizure of drugs found in the possession of drug dealers, to prevent the continuation of their illicit activities.

So does a seized asset fall into succession?

When an owner of seized property dies, an important question arises: Does the seized property enter probate? The answer is yes.

Although the seizure limits the availability of the asset, the ownership remains with the original owner until a formal transfer through judicial measures such as an assignment decree or confiscation.

Therefore, a property or any other asset seized becomes fully part of the inheritance upon the owner's death, just like other assets.

But what does this mean for the heirs?

It means that the heirs can inherit the seized asset with all the restrictions and limitations that were imposed on the deceased. This reflects the principle that not only the assets, but also the debts and liabilities of the deceased, pass to the heirs. Heirs, therefore, must manage both the inherited asset and the related legal complexities.

Legal options for heirs of seized assets

The heirs of a seized asset are faced with several options for managing this complex situation. One of the first considerable actions is the request for revocation of the seizure.

If conditions permit, the heirs can submit a request to the competent judge for the seizure to be cancelled, especially if they can provide sufficient guarantees, such as a deposit, to cover the amount of the debt that gave rise to the seizure, as required by the Article 684 of the Code of Civil Procedure.

Article 684
Revocation of seizure

The debtor can obtain from the investigating judge, with a non-challengeable order, the revocation of the seizure by providing suitable security for the amount of the credit that gave rise to the seizure and for the expenses, based on the value of the seized things.

However, if there are no specific initiatives aimed at paying off the debt or resolving the legal issue that caused the seizure, the asset will remain under the same restrictions of unavailability that burdened the deceased. This means that, despite being owners, the heirs will not be able to freely use the asset until the legal dispute is resolved.

Furthermore, in the case of preventive seizure linked to crimes, the death of the owner can automatically lead to the cessation of the seizure, since the death of the accused extinguishes the crime and, consequently, the associated precautionary measures.

Judicial seizure of the inheritance: safeguarding the disputed assets

The judicial seizure of the inheritance is a specific precautionary measure, provided for by Article 670 of the Code of Civil Procedure, which can be ordered to preserve the integrity of the assets included in the inheritance.

Article 670.
Judicial seizure

The judge can authorize judicial seizure:
1) of movable or immovable property, companies or other types of property, when their ownership or possession is disputed, and it is appropriate to provide for their custody or temporary management;
2) of books, registers, documents, models, samples and any other thing from which evidence is claimed, when the right to exhibition or communication is disputed, and it is appropriate to provide for their temporary custody.

This type of seizure is often requested when there are uncertainties or disputes regarding the ownership of inheritance assets or dangers that these may be damaged or dispersed.

For example, an heir who suspects that his legitimate share has been damaged can request the judge to judicially seize assets that he believes have been illegitimately assigned to other heirs. This precautionary action serves to “freeze” the assets until clarity is clarified on the legitimate claims of each participant in the succession.

Another common scenario is the judicial seizure of an entire dormant inheritance, i.e. an inheritance that has not yet been formally accepted by any heir. This is done to safeguard the integrity of the assets until it is clarified who will have the right to accept the inheritance and under what conditions.