When it comes to transferring a securities portfolio, it is essential to be aware of the correct legal procedures in order to avoid complications in the future, particularly in the event of disputes. With Order No. 31170 of 5 December 2024, the Court of Cassation provided important clarifications on the matter, confirming the requirement for a public deed in the direct donation of securities.

Is a public deed required to donate a securities portfolio?

Yes. According to Order No. 31170 of 5 December 2024 issued by the Court of Cassation, the donation of a securities portfolio is regarded as a direct gift and must be formalised by means of a public deed (Art. 782 of the Italian Civil Code), in the presence of two witnesses. This requirement ensures that the donor is fully aware of the patrimonial consequences of the donation.

What happens if the donation of a securities portfolio is not made by public deed?

If a direct donation is made without a public deed, it may be annulled. In that case, the securities or amounts transferred revert to the estate, as established by settled case law.

Is it possible to prove the validity of the donation by other means?

In the event of disputes, the validity of the donation must be proved by demonstrating compliance with the legal formalities. Without a public deed executed before witnesses, the direct donation of securities risks being declared invalid.

Are there differences between a direct donation and an indirect donation?

Yes.
The United Sections of the Court of Cassation (judgment No. 18250/2017) clarified that:

A direct donation mandatorily requires a public deed.

An indirect donation, by contrast, does not require a public deed.

Can a bank transfer between family members be regarded as an indirect donation?

Yes.
For instance, the Civil Court of Cassation, judgment No. 7442/2024, held that a bank transfer between an uncle and a nephew constitutes an indirect donation and is therefore not subject to the public deed requirement.

What risks do I face if I fail to comply with the formal requirements for donating a securities portfolio?

You risk that:

  • The donation is annulled.
  • The securities or assets donated revert to the estate, potentially giving rise to conflicts among heirs.

Conclusion

When donating a securities portfolio, it is essential to comply strictly with the legal formalities in order to protect both the donor and the beneficiary, and to ensure the full validity of the transaction. Engaging an independent financial adviser with expertise in this area is the most effective way to handle this type of operation correctly.