Why is it advisable to draft an Italian Will?
Why is it advisable to draft an Italian Will
It is generally suggested that foreign citizens who own Italian assets draft an Italian Will and Probate. This will avoid significant difficulties that heirs might encounter when transferring the ownership of Italian properties originally registered in the name of the testator.
As matter of fact if the deceased has not left a Will (therefore dying intestate), the legal succession applies. In such cases, the Italian law determines which relative of the deceased has the right to succeed (first the spouse, the legitimate and natural children and descendants). In absence of a Will, and in the case of a lack of heirs, according to Italian law, the hereditary assets present in Italy would be assigned to the Italian State.
According to Italian law, all Wills must be published by an Italian Notary Public, who will not publish or legalize documents drafted in a foreign language, unless duly translated into Italian by a sworn translation. Such a task will most likely involve the assistance of a qualified legal translator/interpreter.
We can help you draft a bilingual Italian Will, in compliance with Italian legislation, in order to reduce the effects of the Italian legal succession, and in order to try and ensure that your Italian property will be assigned only to the people you have indicated. We will provide assistance with Italian Inheritance Law.
By drafting an Italian Will, the testator effectively reduces the risk of conflicts among the heirs. A Will also ensures that Italian authorities have a clear and direct understanding of the legal framework.
In order to be eligible to draft an Italian Will the testator should be at least 18 years old, be the legal owner of the assets in the Will, and of sound mind. After the death of the testator the Will must be published with the support of an Italian Notary Public. Subsequently the heirs will be in the position to proceed with the Italian Probate (Denuncia di Successione – Wills and Probates). This should be executed within one year after the testator’s death. Once this procedure has been completed, it is possible to change the title of ownership of the Italian assets (Voltura).
If you need further information concerning Italian inheritance law please feel free to contact our offices. If you are the heir of an estate, we can assist you during the publication of the Will, the probate and the payment of any inheritance tax that may be applicable. We can also assist with the formal acceptance of the inheritance.
Please note, any statement made in this article is intended to be a general practical introductory explanation only and not advice. This firm accepts no liability or any responsibility for any statement made.
This post was submitted by De Tullio Law Firm.
A brief introduction to Italian Inheritance Law
Italian Succession Procedure
Italian inheritance law is based on the Roman Law tradition, and it guarantees a particular protection to close members of the family, partially limiting the right of the testator to dispose of his/her own assets.
According to Italian law, inheritance is transmitted in 2 ways:
1) According to the law of Legitimate succession, if the deceased died intestate (without a Will), the assets are transmitted to the descendents or the surviving spouse following the principles set out within the Italian Civil Code.
In this case the inheritance is distributed following the principles of the Legal Succession (Intestate Succession). The Italian Civil Code indicates a number of individuals (legitimate heirs) who are entitled to take over the assets of the deceased. Such heirs are the spouse of the deceased and the relatives identified by the law starting from the closer ones until the 6th degree of connection. In absence of relatives within the 6th degree of connection the inheritance is devolved to theItalianState.
2) According to a Will (Testamentary Succession), which is a legal document signed by the deceased in order to dispose of his assets after his/her death.
In broad terms the Will can be of two types:
a) Italian Will: This will need to be “published” and registered with the competent Italian authorities after the death of the testator.
b) Non Italian Will: Such a Will must first be translated by means of a sworn translation before an Italian Court. A non Italian Will,
especially if it lacks any explicit reference to the Italian assets, becomes subject to interpretation with the support of an Italian attorney. This is necessary in order to assess if such a Will can be applicable to the Italian assets or not. If the assets are not expressly disposed of by the Will, then the right to succession to these will follow the rules of the Italian Civil Code.
When the deceased has left a Will, the first step is to proceed with the “Probate”. The Will needs to be published with the assistance of an Italian Notary Public.
Just after the publication, and also in case of Legitimate Succession, it is possible for the heirs to proceed with the Italian Statement of Succession (Denuncia di Successione), which should be executed within one year after the testator’s death. This procedure implies getting in contact with the Ministry of Finance, to which all the assets should be recorded, as well as with the competent office of the Agenzie delle Entrate) which will be determined according to the domicile of the deceased at the date of his/her death. At this stage, the heirs will be called upon to pay the taxation connected with the inheritance.
The amount of tax will be determined according to the relationship of the deceased to the heirs and the total value of the assets involved in the succession.
The procedure will be then finalized by registering the property in the name of the new owners in the Land Registry (the so called Voltura).
Both the principles of testamentary and legal succession cross with the principle of “necessary succession”. Namely the Civil Code also
provides for a reserved quota for very close relatives (spouse, ascendants and descendents defined as “forced heirs”). It deals with a significant quota of the inheritance that the testator cannot prejudice with his Will. The testator has the right to assign his assets to strangers pursuant to the law (disposable quota) but this right is partially restricted.
Avv.Giandomenico De TullioTEP
De Tullio Law Firm (www.detulliolawfirm.com) is an international legal practice with expertise for cross-border property transactions and inheritance matters in Italy.
This post was submitted by De Tullio Law Firm.
Fundamentals of Italian Inheritance Law
Italian inheritance law Regulation
system of succession is to be ruled according to the law of the country where he/she resides. Such choice has to be formally expressed in a Will and should not be inconsistent with the rights that the Italian law provides for the so called “legittimari” ( members of the family who have the right to receive a fixed part of the property of the deceased irrespective of contrary provisions in the Will) who are resident in Italy at the time of death.
It is extremely desirable to have an Italian will drafted, and an Italian lawyer expert in the field is a good choice. In that way it is possible to prevent the consequences deriving from an intestacy, also known as a “legal succession”, since in that case the Italian law determines which relatives of the deceased have a right to succeed. In case of a lack of potential eligible heirs, Italian law states that the hereditary assets located inItaly will be transferred to theItalianState.
Basic principles of Italian inheritance law
Italian inheritance law dates back in the Roman Law tradition. It is based on the principle that close family members of the deceased merit special protection, partially limiting the right of the testator to dispose of his/her own assets entirely as he/she wishes.
“Testamentary succession” can be defined as the assignment of the hereditary assets (“estate”) of a deceased testator in compliance with the decisions of the testator as set out in an Italian Will.
In the absence of a Will, (intestate succession) the estate devolves following the principles known as “legal succession”; in other words the
Italian Civil Code specifies a number of individuals (legitimate heirs) who take over the assets of the deceased. Such heirs are the spouse of the deceased and certain classes of relatives identified by law, starting from the closer ones until the 6th degree of connection. In simple terms, the Italian legislature, (in the absence of a Will), has decided to legally prefer the interests of family members rather than those of other parties. In the absence of relatives within the 6th degree of connection the estate devolves to theItalianState.
The principles of testamentary succession and legal succession overlap with the principle of “necessary succession”.
The Civil Code reserves to very close relatives (spouse, ascendants and descendents defined as “forced heirs”) a significant portion of the estate that the testator cannot prejudice or circumvent by the provisions of his/her Will. The legislature has therefore decided to strike a balance between complete testamentary freedom and the moral necessity of protecting close family members from the possibility of being excluded completely from their prospects of inheritance.
When drafting his/her Italian Will the testator is free to dispose of part of his assets defined as the “disposable quota” (in contrast with the “reserved quota” assigned to the close relatives). In short, the wishes of a testator to leave his assets to strangers is accepted by the law, but it is partially restricted. Further, an Italian Will infringing the rights of the “forced heirs” is not necessarily invalid from the outset, as it is fully enforceable unless and until challenged in Court by the disadvantaged “forced heirs” through a legal action called “abatement of the inheritance”.
This post was submitted by De Tullio Law Firm.
Which procedure should be undertaken by relatives of a deceased person, who owned some properties in Italy?
According to Italian law, inheritance can be transmitted in 2 ways:
1) According to the law: when the deceased dies intestate (therefore in absence of a Will), his/her properties are transmitted to the descendents and/or the surviving spouse, according to the principles set out by the Italian Civil Code.
2) According to a Will: that is to say the typical legal document drafted by a person in order to dispose of his/her assets after his/her death. It is important to point out that if the Will infringes the right of the so called forced heirs (that is to say, the spouse and/or the children, other parties to whom the testator donor cannot legally deny a portion of his/her assets reserved for them by law), these heirs are allowed to challenge the Will before the Court.
Any Will must always be published by an Italian Notary Public, and registered with the competent Italian authorities after the death of the testator. In case of a non Italian Will, this should primary be the object of a sworn translation in front of an Italian Court. In case of a non Italian Will, especially if it lacks any explicit reference to Italian assets, the Will should be object of interpretation of an Italian specialized lawyer. This is necessary in order to assess if such a Will can be applicable to the Italian assets or not, and if it is compatible with the Italian legal system. In the negative case, the succession of the Italian assets will follow the rules of the Italian Civil Code.
In all cases the Italian inheritance ( italian-inheritance-law-basics) should be formally accepted, with a specific Deed.
Within 12 months following the demise of the testator, the heirs should file the Italian Probate (Denuncia di successione – Wills and Probates) with the competent Italian authority (namely, Agenzia delle Entrate). The relevant branch of Agenzia delle Entrate will be determined by the last domicile of the deceased. In such a context, the heirs will be required to pay the taxation connected with the inheritance. Such duty will be determined according to the relationship of the deceased with the heirs, and on the base of the total value of the assets involved in the succession.
After completion of the probate it will be possible to re-register the immovable assets in the name of the heirs (the Italian �Voltura�).
An Italian attorney specialized in inheritance law can certainly help you manage the procedures mentioned above. ( Italian Succession).
If you need further information concerning Italian inheritance law please feel free to contact our offices. If you are the heir of an estate, we can assist you during the publication of the Will, the probate and the payment of any inheritance tax that may be applicable. We can also assist with the formal acceptance of the inheritance.
Please note, any statement made in this article is intended to be a general practical introductory explanation only and not advice. This firm accepts no liability or any responsibility for any statement made.
This post was submitted by De Tullio Law Firm.
