EU SUCCESSION REGULATIONS: INTRODUCING THE EUROPEAN SUCCESSION CERTIFICATE (ESC).

A norm introducing the ECS (European Certificate of Succession) was published on the Official Journal n.261 – Ordinary Issue n. 83 on November 10th 2014,
The task of issuing such certificate will be handled by notary publics.
Primarily, The European Certificate of Succession is a new European document of uniform law, whereby the heirs, legatees, will executors or inheritance administrators will be able to exert their qualities and inherent rights, powers and facility matters in a foreign country, without any further paperwork.

• The ECS can be utilised in another EU Member State but is also valid in the issuing country..
• As of August 17th 2015, notary publics will have the possibility to release the ECS for all the succession procedures handled from such date onwards;

It is possible to request ECS to any Italian notary public (without any hindrances as to where the succession occurs and/or the assets are) in the following circumstances:

• If the deceased has his/her habitual residence or citizenship in Italy at the moment of his/her death;
• If such residence has not changed and the ECS was requested 5 years prior to his/her death;
• If the deceased has chosen to comply to the Italian law of citizenship at the moment of his/her death;
• In case there is a sufficient enough connection to the Italian State when the succession procedure is started and no other competent authority can act thereto.

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Requesting a national Visa for Elective Residence.

What is a national visa for elective residence? The visa for elective residence grants access to Italy to foreigners wishing to reside in the country and who reckon to be able to subsidise themselves finacially, without carrying out any working activity (Article 13 of Attachment A of the interministerial Decree MAE n°850 from 2011, defining the types of entrance visas and the requirements needed in order to obtain them).

Whad paperwork is necessary in order to obtain it? Foreigners wishing to obtain the residence visa, will have to provide proper and documented proof about the existance of a dwelling to be chosen as his/her own place of residence, as well as the availability of a relatively vast financial yearly income. Such income should add up to less than 31,000 euros a year (i.e. triple yearly amount as opposed to the amount estimated in chart A attached to the directive issued by the Ministry of Internal Affairs on March 1st 2000, reporting the means of sustenance needed for the access and the residence of foreigners in the State’s territory), and can come from the entitlement to substantial incomes (i.e. pensions, life annuities), from owning real estate, from stable businesses or from any sources other than subordinate employment.

Who is entitled to the visa other than the requesting party? The cohabiting spouse, underage and adult dependent children will receive the same visa, providing that the aforementioned income is deemed as adequate to the ends of their sustenance as well. Furthermore, the total amount of the monthly incomes will have to increase by 20%, in case the visa is requested for the spouse as well . Such increase will have to add up to at least 5% for each dependent child.

What criterion applies in case the dwelling property is purchased in Italy? Providing that a dwelling property is purchased in Italy, the Embassy and the Consulates will apply the criterion of the “minimal financial requirement” as according to the Italian regulation (about 31,000 euros a year). In other cases, in accordance with such regulation, the task of establishing the effectiveness of such requirements is entirely up to the Embassy.

How long is the visa valid for and what does the renewal procedure entail? The issued visa for Elective Residence will be valid for 1 year after which the visa can be renewed at the competent police headquarters providing that the original requirements are still valid. The entrance visa must be converted into a residency permit within 8 days from the arrival to Italy, as for all other typologies of long-lasting visas. Such residency permit cannot be renewed or postponed if the foreigner has interrupted his/her stay in Italy for a span which is longer than six months, except if such interruption was mandatory due to military duties or other significant and substantiated motivations.

Is any working activity legit with this type of visa? No, this type of visa does not allow carrying out any working activity in Italy.
Is there any other type of visa for longterm stayers? After 5 years, it is possible to request an EC permit of residency for longterm stayers which has permanent validity and allows its holder to benefit from the same treatment as the one granted to EU citizens.

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A few facts about Power of Attorney and its legal implications.

You may have often heard of “power of attorney,” yet you may still not know exactly what its purpose is or when its use is considered proper.
In order to shed some more light on the subject, some basic facts on Power of Attorney are explained as follows together with the legal ramifications to purchasing and/or inheriting real estate in Italy.

What is Power of Attorney? A Power of Attorney – “Procura” in Italian, is a legal document by means of which “principal” gives certain powers to act legally on his/her to someone else: the “agent”;.
What is its content? A “Procura” clarifies exactly what powers the principal gives to the appointed agent.
What are the currently existing types of “Procura”?

1. In case of a “Procura Speciale” (Special Power of Attorney), limited powers are given to your attorney/agent in the following cases:
o If, for instance, you are purchasing an estate in Italy, but cannot be on site on the day in which the sale deed must be signed, you can bestow the power to sign such deed on your attorney / agent.
o If, for example, you live in the USA, have inherited assets in Italy, but are unable to make it to Italy to file for probate, re-register assets in your name or organize the legal division of assets from a communal inheritance, you may give your attorney / agent the power to handle the Italian succession procedure on your behalf.

2. A General Power of Attorney (Procura Generale) entitles your agent to do almost anything you could do.

In what circumstances can a Procura be revoked? Both Special and General Power of Attorney are usually terminated in case the principal dies or becomes legally “incapable”. However, if necessary, a Power of Attorney can be anulled at any time by means of the same legal document used to confer it in first place.

What should I consider before appointing an agent/attorney? If you are considering granting a Power of Attorney, you should be extremely careful about whom you chose as an agent/attorney as you are delegating the very management of your own affairs to someone else. Hence, it is extremely important that you entrust a reliable and competent person with this delicate task, preferably a professional. Conferring Power of Attorney to someone who does not have enough experience or that you might have a conflict of interest with is highly advised against.

What are the legal requirements to the issuing of a Procura? A Procura is a formal document, and many legal requirements must be met before it can be issued.
Generally, it is examined by the competent authorities carefully before it is released. The agent will need to sign the Procura in his / her home country in the presence of a public officer.
The USA, UK and Australia have signed The Hague Convention of 5th October 1961 which abolished the Requirement of Legalisation for Foreign Public Documents. In any case, an Apostille Certificate or Stamp, also known as the Hague Apostille,is required as proof of authenticity. Ensure to check the pertinent procedures with the UK Foreign and Commonwealth Office, the US Department of State and the Australian Department of Foreign Affairs and Trade.

A Power of Attorney is a very delicate matter. You are granting your rights and the handling of your affairs to someone else. Make sure to seek for the help of a professional before drawing up a Procura.

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What is a Formal Will, a Holographic Will and a Sealed or Secret Will?

What is a Formal Will, a Holographic Will and a Sealed or Secret Will?

Searching for Wills in Italy

There are three main forms of will in Italy:

  • A Formal Will (Testamento Pubblico), drawn up by a Public Notary on the testator’s instructions. Witnessed and deposited with Public Notary until testator’s death.
  • A Holographic Will (Testamento Olografo), hand written, dated and signed by the testator. No witnesses required. May be deposited with a lawyer, Notary Public or kept by the testator until testator’s death.
  • A Sealed or Secret Will (Testamento Segreto), hand written by the testator, placed in a sealed envelope and deposited with a Public Notary until testator’s death.

All three types of Will must be written in Italian to comply with Italian civil code. To avoid potentially significant difficulties following death of a testator, we recommend engaging a lawyer to assist you with all Italian Will formalities and legal requirements when making an Italian Will.

If it is deemed that someone had a Formal or Holographic Will, which was deposited with a Public Notary, a request with a death certificate attached can be submitted to the District Chamber of Notaries (Consiglio Notarile distrettuale), who will be forward a search request to all Public Notaries within a district.

It is also advisable to submit a request to the Notary Archives Registry Office, in charge of keeping the deeds and wills deposited by the notaries who have ceased business. The General Will Registry Bureau (Registro Generale dei Testamenti), whose headquarters are at the Main Office of the Notary Archives (Ufficio Centrale degli Archivi Notarili) in Rome, can also be consulted.

The General Will Registry Bureau provides the possibility to find out if the deceased had a Will or not, whether in Italy or abroad. The request for the issuance of a decedent’s Will can also be submitted through the Bureau, to the relevant entity of a foreign country which has adhered to the International Basel Convention. Other than Italy, the countries which have signed the Basel Convention are: Belgium, Cyprus, Estonia, France, Lithuania, Luxembourg,

Netherlands, Portugal, Spain, Turkey and Ukraine.

According to Italian Will formalities, interested parties may request a subscription certificate, in the name of the deceased, from the General Will Registry Bureau, as well as the reference to the district notary archive where the Will was deposited, in case the notary has ceased business.

The following records are held in the General Will Registry:

1. Formal Wills;

2. Sealed /Secret Wills;

3. Special Wills;

4. Holographic Wills which have been formally deposited with a Public Notary;

5. Memorandum of publication of Holographic Wills, whether or not deposited with a Public Notary;

6. Withdrawal of Holographic and Sealed / Secret Wills, which were formally deposited at a Public Notary’s office;

7. Suspension of previous arrangements caused by death, providing some had been made by means of a new Will.

Please note, any statement made in this article is intended to be a general practical introductory explanation only and not formal legal advice. This firm accepts no liability or any responsibility for any statement made.

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