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- Until the estate is divided, the inherited assets belong to all the heirs together (hereditary co-ownership). Division ends this co-ownership and assigns to each one assets of a value corresponding to his or her share. No heir is obliged to remain in co-ownership (Art. 713 c.c.).
- If everyone agrees, a contractual division is made, in writing if there is real estate. If there is no agreement, one goes through mandatory mediation and then to the judge, with the participation of everyone.
- Gifts received during life and the deceased’s debts affect the calculation of the shares.
- If there is a house, what matters is who occupies it, who pays the expenses and whether it can be divided. Otherwise it goes towards allocation to one heir with an equalizing payment, or towards sale.
Updated on October 18, 2026.
When you inherit together with other family members, a situation arises that the law calls hereditary co-ownership. To understand it, think of a cake. Each heir has an ideal slice (the share, for example one third each), but no one can say “this room is only mine”. The division of the inheritance is the step by which the co-ownership ends and concrete assets are assigned to each one. If you first want to understand how co-ownership works, read the guide on how hereditary co-ownership is dissolved.
It is also the moment when quarrels arise, especially when the main asset is the family home. In this guide you will find the general rules, the path to follow when the heirs do not agree and the typical problems of those who inherit a property.
How the inheritance is divided: the two routes
- Contractual (amicable) division: the heirs agree unanimously on the split. If the agreement concerns real estate it must be made in writing. For registration, authenticated signatures or a notarial deed are needed.
- Judicial division: if no agreement is found, one or more heirs can ask the judge for the division. The proceeding requires the participation of all the heirs. In disputes on division one must first go through mediation, which is a condition for bringing a lawsuit.
No heir is obliged to remain in co-ownership: division can be requested at any time (Art. 713 c.c.). If everyone agrees a partial division can also be made, concerning only some assets or only some heirs.
The routes compared
| Route | When it is used | What is needed |
|---|---|---|
| Contractual division | All the heirs agree | Unanimous agreement; for real estate a written deed, with authenticated signatures or a notarial deed for registration |
| Partial division | Only part of the assets or only some heirs are divided | The agreement of all those concerned |
| Division on joint application | The heirs agree on the division but not on how to carry it out | Delegation to a notary or a lawyer (Art. 791-bis c.p.c.) |
| Judicial division | There is no agreement | First mandatory mediation, then the lawsuit with all the heirs; as a rule a technical expert values the assets |
If the heirs do not agree: mediation and judicial division
Disputes on division and inheritance are subject to mandatory mediation (Art. 5 Legislative Decree 28/2010). Before the lawsuit an agreement must be attempted before a mediation body, with the assistance of a lawyer. It is the setting in which a solution is often found, for example with the purchase of the shares by a co-heir. If the agreement is reached, for real estate a deed with authenticated signatures is needed for registration.
If mediation fails, the lawsuit is started before the court. The judge, as a rule with the help of a technical expert, values the assets, checks whether they are conveniently divisible and forms the portions. In the division the economic relations among co-heirs are also settled: expenses incurred, fruits collected, gifts to be taken into account (collation).
The heirs may agree on the division but not on how to carry it out. In this case there is also the division on joint application, delegated to a notary or a lawyer (Art. 791-bis c.p.c.).
What is divided and what counts in the calculation
Assets and credits
All the assets of the co-ownership are divided. The credits of the deceased are also part of it and are not automatically split among the heirs: they must be considered in the division.
The testator’s rules
The testator may lay down rules for the formation of the shares, which the heirs must respect, unless the value of the assets assigned differs significantly from the share due. He or she may also divide the assets directly among the heirs. In that case co-ownership does not arise and each one immediately becomes owner of what was assigned to him or her.
Collation
The spouse and descendants (children, grandchildren) who take part in the succession must bring into the estate what they received during life from the deceased by gift, unless exempted. Gifts, in practice, are considered an advance on the inheritance. Collation serves to ensure equal treatment.
Inheritance debts
The co-heirs answer for the deceased’s debts in proportion to their respective shares, both among themselves and towards the creditors.
The family home: the typical problems
Only one heir lives in the house: can an indemnity be requested?
It is the most frequent case: an heir already lives in the property and stays there after the death, without paying anything to the others. The answer depends on who the occupant is.
- Surviving spouse: has the right of habitation over the family home. As long as he or she enjoys it, the other heirs cannot send him or her away or demand rent.
- Child or other relative without that right: if he or she uses the house exclusively, preventing the others from using it, the other heirs can ask for an occupation indemnity. It is a sort of rent proportional to their share, which the judges as a rule calculate on the market rents of the area. As a rule it must first be made clear to the occupant, with a formal letter or a legal action, that occupation without consideration is no longer accepted.
Expenses, taxes and works: who pays what
- Taxes on the house (IMU): must be paid by whoever is the holder or has the right of habitation. Paying them regularly for years may be read as behavior of an heir (so-called tacit acceptance of the inheritance). In a case decided by the Court of Naples in 2022, the continuous payment of the taxes on the property for almost twenty years was held sufficient proof of the status of heir.
- Ordinary maintenance (small repairs, painting): as a rule remains at the charge of whoever uses the house and is not reimbursed.
- Urgent and necessary works: whoever advances out of his or her own pocket interventions indispensable to preserve the property (the roof, dangerous parts, condominium balconies) can ask the other heirs for their part, in proportion to the shares. Mere cleaning or luxury expenses made without telling anyone are not reimbursed.
- Evidence: without invoices and bank transfers, as a rule you obtain nothing.
If the house cannot be divided
A property is “conveniently divisible” only if autonomous and functional portions can be obtained from it, without disproportionate costs and without loss of value. This is rare for city homes. In the lawsuit the judge usually appoints a technical expert (CTU) who values the property and checks its divisibility. If the house is not conveniently divisible, Art. 720 c.c. applies:
- the property is allocated in full, preferably, to the co-heir with the largest share or to several co-heirs who jointly request it, with charging of the excess in money (the equalizing payment to the others). When the shares are equal, as between two brothers or sisters, it must be assessed case by case;
- if no one requests its allocation, the sale by auction is carried out and the proceeds are divided in proportion to the shares.
So sale at auction is not a forced route. Whoever wants to keep the house must however expressly request its allocation and have the ability to pay the equalizing payment. According to the Court of Cassation (order of December 15, 2022, no. 36736) allocation presupposes an express request by the interested co-heir: the judge cannot assign the property ex officio to someone who has not requested it.
With the order of February 18, 2026, no. 3703, the Court of Cassation reaffirmed that, when the estate includes several assets, convenient divisibility must be assessed on the whole. If division in kind would require substantial equalizing payments, it must be excluded.
To see what a similar case looks like, read the frequent case of the house co-owned by brothers and the one on the co-heir who wants to sell his or her part to a stranger.
Beware of irregular properties
The Joint Chambers (judgment of October 7, 2019, no. 25021) established that hereditary division too is subject to the urban planning rules: a property with unregularized violations cannot be divided. Before dividing it is therefore worth checking the building and cadastral regularity.
Why a lawyer (and a notary) is needed
A mistake in the calculation of the shares, in the deadlines or in the drafting of the agreement can cost a lot and ruin family relations. The lawyer assists you in the negotiations and, if needed, in court, and calculates reimbursements and indemnities. The notary takes care of the deed that correctly transfers ownership and of the regularity of the property registers.
Related guides
- How long does a lawsuit for division of the estate last and how much does it cost?
- Division of the estate before a notary: how it works, how much it costs and which taxes are paid
- Inherited house occupied by only one heir: must an indemnity be paid to the others?
- Inheritance and family home: how to obtain allocation of the property in the division
- Four brothers inherit the parents’ house: can the others exclude me?
- The valuation of properties in the division of the estate: who does it and how to challenge it
- Hereditary co-ownership: how it is dissolved and what to do if the heirs do not agree
- House co-owned by brothers: how to divide it without quarreling
The route that usually works best
The possible routes
- Contractual division with unanimous agreement, even if only partial.
- Agreement for the allocation of the house to one heir, with an equalizing payment to the others, or for the purchase of the shares by a co-heir.
- Judicial division, preceded by mediation, if no agreement is found.
Which usually works best and why
It depends on the case, but one usually starts from an agreement. If everyone agrees the lawsuit, which can last a long time, is avoided. If the agreement concerns real estate it must be in writing. The judicial route remains open when no understanding is found. For an indivisible house, allocation requires an express request by the interested co-heir.
What to do right away
- Check whether the testator left rules or has already divided the assets.
- List the deceased’s assets, credits and debts and the gifts received by the spouse and descendants.
- If there is a house, check the building and cadastral regularity, clarify who occupies it and keep invoices and bank transfers of the expenses.
- Start mediation with the assistance of a lawyer.
Each situation must be assessed on the documents of the specific case: this indication is not a promise of outcome.
How Attorney Fiorentino can assist you
- Analysis of the will, assets, gifts and debts to calculate the shares.
- Negotiation for an amicable division, with the notary for the notarial aspects.
- Assistance in mediation and, if needed, in the division lawsuit.
The Firm also offers remote consultations, with documents sent online, and gives you a written quote before the engagement. I see clients by appointment in Naples, Rome and Bari.
Frequently asked questions
What is the division of the inheritance?
It is the set of operations by which the co-ownership of the inherited assets is ended and each heir is assigned a portion of a value corresponding to his or her share.
What to do if the heirs do not agree?
Mandatory mediation is attempted first, with the assistance of a lawyer. If it fails, each heir can ask the court for the division, with the participation of everyone.
Can the inheritance be divided only in part?
Yes, if all those concerned agree: partial division may concern only some assets or only some heirs.
Does whoever lives alone in the inherited house have to pay the other heirs?
It depends. The surviving spouse has the right of habitation. A child or another relative who uses the house exclusively may be liable for an indemnity, as a rule after the other heirs have made known that they do not accept free occupation.
What happens if the house cannot be divided?
The judge can allocate it to an heir who expressly requests it, with an equalizing payment in money to the others, or order its sale by auction (Art. 720 c.c.). Sale is therefore not the only route.
Do the gifts received during life count?
Yes: the spouse and descendants must bring them into the estate (collation), unless exempted.
Can a property with building violations be divided?
According to the Joint Chambers (judgment no. 25021/2019) hereditary division is subject to the urban planning rules: a property with unregularized violations cannot be divided. It is worth checking the building and cadastral regularity first.
Sources: Normattiva, Civil Code (Arts. 713 et seq., in particular 720) and Code of Civil Procedure (Art. 791-bis); Legislative Decree 28/2010, Art. 5; Cass. Joint Chambers no. 25021/2019, Cass. orders no. 36736/2022 and no. 3703/2026; Court of Naples, judgment of 2022. Author: Attorney Renato Giuseppe Fiorentino, Naples Bar. Informational text, it does not replace an opinion on your case.
Main page on the subject: Inheritance and gifts in Naples: all the guides and how to contact the firm →
Read also
- Unfair inheritance? Here is how the value of the money due to you is calculated
- Inheritance: how to defend yourself if a relative “pretends” to sell his or her assets?
- Unfair inheritance: how to recover your share with the action for reduction
(Read also): Legal guides from Studio Legale Fiorentino · Surviving spouse’s right of habitation: what is due on the family home · Children from a first marriage and a new spouse: how the inheritance is divided and what protections exist
Translated from the Italian original; updated on October 18, 2026.
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