Executor in Italian Succession

What is the role of an executor in Italian succession?


Only a testator may appoint an executor in a will. An 
executor in an Italian succession procedure is responsible for managing your last wishes and the administration of your estate. Your appointed executor should agree to undertake to manage your estate with all reasonable care.

In Italy, an executor manages all succession procedures in accordance with Italian legislation

First, the executor must take possession of all the assets included in your estate. Then the executor manages the distribution of assets and bequests to heirs in accordance with your will. If you appoint an executor, your heirs may neither manage nor dispose of your assets autonomously.

Appointing an executor is highly recommended in complex personal or patrimonial frameworks. For example, an estate involving cross-border assets. Similarly, if estate transfer is to heirs living outside of Italy or who are not Italian nationals or the testator feels may have vested or conflicts of interest. Another example would be if an heir is legally incapacitated or under the age of 18.

According to Italian law, an executor has the power to manage the deceased’s estate. As previously mentioned, this involves taking possession of the assets and distributing them among heirs forced and nominated heirs as applicable. Where a court claim or dispute arises, the executor actively and passively represents the deceased. In addition, the executor is responsible for obtaining relevant legal consents where heirs are minors, absent, legally incapacitated or legal entities.

Once the Italian succession procedure is complete, the executor must render detailed accounts. An executor is personally liable to pay any damages to heirs or legatees in case of mismanagement.

Is it possible to take a “DIY” approach to Italian estate administration?

Of course, you don’t need to appoint an executor in your will. Your heirs can manage the whole Italian succession procedure themselves. That said, the death of a relative or friend is a very stressful and emotional time. If the estate involves any complexity such as property in Italy, this can lead to misunderstandings or conflicts among heirs.

If you are making or reviewing your will, appointing an experienced estate lawyer as your executor protects your heirs from misunderstandings. In addition, it will reduce costs deriving from procedural mistakes and inheritance tax calculations.

Likewise if you are an executor of an Italian estate, a lawyer will be able to help with the Italian succession procedure. Engaging a specialist Italian inheritance lawyer will facilitate the whole process. It can save money and headaches with paperwork or red tape and prevents procedural mistakes and omissions. Plus if a costly error does happen, your lawyer is jointly liable.

Finally …

At De Tullio Law Firm, we have over 55 years of expertise managing cross border succession and estate planning matters throughout Italy. Our firm is also a full member of STEP, the world’s leading association for trust and estate practitioners.

Please contact us if you have any questions about your Italian estate planning.

Cross-Border Inheritance in Italy. A Case Study

What is the legal situation if you own assets in Italy and abroad?


Cross-border inheritance cases have increased during the past decade. In this article we therefore explore one such cross-border inheritance case.

Tom Smith was a UK national in his 60s. He had two children from his first marriage, both children are now adults. On a trip to Italy 20 years ago, Tom met a young Italian woman, Giovanna. A few years later, they got married in Giovanna’s home town – Perugia, in Umbria.

Tom and Giovanna set up home in the countryside, about 30kms from Perugia. They lived in a house on two hectares of land set to orchards and olive groves.

Tom and Giovanna have a daughter. Francesca, now aged 15, was born in Italy and holds dual British and Italian nationality.

Cross-border investments

Before he met and married Giovanna, Tom had purchased a property in Bath in southwest England. The title is in Tom’s name only and the property is currently valued at about £1 million. During their marriage, Tom and Giovanna purchased a property in Cornwall, now worth about £300 thousand, which they jointly own.

The property in the Umbrian countryside was purchased for €250 thousand in 2007, under the Italian marital “Community of Property” regime.

In his name only, Tom also has a portfolio of investments in the UK. The portfolio is worth about £200 thousand. In addition, Tom has UK bank accounts with a balance of £10 thousand. He and Giovanna have a joint bank account in Italy with a balance of €12 thousand. The family mainly used this for property maintenance, tax and living expenses in Italy.

Wills

When Francesca was born in 2002, Tom made a new English will. He revoked his former will at that time. Tom left legacies of £100 thousand to each of his two adult children, with the residue of the estate held in trust with an income to his wife Giovanna for life. On Giovanna’s death, the estate passed to Francesca. He appointed an English solicitor as executor and trustee of the estate.

Tragically, one morning last year, while Tom was working in his olive grove, he suffered a  fatal heart attack. Giovanna is now finding it impossible to cope with the house and land in the Italian countryside. She wants to sell the property and purchase an apartment for herself and Francesca in Perugia.

Giovanna thinks Tom had an Italian will that mirrored his English will. However, she has been unable to locate it.

As he is unfamiliar with all the intricacies of Italian law and the Italian inheritance and probate procedure, the English solicitor has contacted us. He has a number questions regarding Tom Smith’s cross-border inheritance case.

Cross-border inheritance Q&A

Is Tom Smith’s English will recognised under Italian law? If so, do the Italian authorities require a UK grant of probate before commencing the administration of the Italian estate?

Assuming Tom Smith’s will is recognised as valid by the UK authorities, it is also recognised under Italian law. A UK grant of probate evidences the recognition of a will by the UK authorities. You may require a certificate of English law as proof of recognition in order to start succession procedures in Italy.

Is it possible Tom also left an Italian Will? What searches could I undertake to ascertain this?

There are three types of will in Italy. Because Giovanna is unable to locate an Italian will, it’s possible that Tom had a will which he deposited with a notary. You can request a search of notarial archives and/or the General Wills Registry in Rome.

What steps, if any, should I take immediately in Italy? Who can take such steps?

Any individual with an interest in the succession can start the relevant succession procedures in Italy. However, in order to facilitate the process, you may wish to obtain support from an Italian inheritance lawyer. The priority is to file the statement of succession with the Italian Inland Revenue (Agenzia delle Entrate).

Can I liaise directly with the bank in Italy, requiring funds to be transferred directly to Giovanna and Francesca?

Yes. However, prior to the completion of succession procedures in Italy, the bank will not release any funds.

As the executor of Tom Smith’s will, can I sell the Italian property directly to a third party? Which law governs the administration of the Italian property?

An executor should dispose of the inheritance assets in compliance with the will. In principle, the administration of an Italian property is subject to Italian law.

Under Italian conflicts rules, which law governs the succession of Italian property?

Italy is a signatory to the EU Succession Regulation. Art. 22 of the EU Succession Regulation provides that a testator may choose, or determine, the law of their nationality as the law to govern the succession as a whole, professio juris (choice of law). Alternatively, with regard to property, succession is subject to Italian law. As far as movable assets are concerned, succession will be regulated by the law of domicile.

Are there any forced heirship rules in Italy? Will they be applicable in this particular case?

Forced heirship rules exists in Italy. They are applicable in this case both to Tom Smith’s direct descendent – his daughter, Francesca and to Giovanna his surviving spouse.

If the Italian property cannot be sold, could the trustee and/or Francesca be one of the registered owners of the property?

They can, provided Tom named them in his will.

Would it have been easier for Tom Smith to make a will under Italian law to dispose of his assets?

Certainly the whole succession procedure would have been easier and more practical if Tom Smith had a will in Italian. In fact, there are difficulties in managing an iternational will in Italy. A will in a foreign language requires a certified translation by a sworn translator. This, in turn, can lead to issues regarding exact interpretation of the testator’s wishes by the Italian authorities. This may lead to a more costly and protracted succession procedure.

Is there any inheritance tax in Italy and, if so, who is liable for the payments?

Yes. Firstly, you need to open a succession procedure. Next, you need to file the statement of succession. Although it is not always the case, the opening of a succession procedure usually coincides with a testator’s death. Thereafter, a filing with the tax authorities should take place – within 12 months of opening the succession procedure. Once the tax authorities receive the statement of succession, they will be able to calculate the amount of inheritance tax due from each heir on their share of the inheritance.

Finally …

Trying to navigate the Italian and cross-border inheritance procedures without the assistance of an experienced Italian inheritance attorney can be difficult. If you live abroad, this may add a layer of complexity. We would therefore recommend that you seek professional advice and guidance to manage the process sympathetically and efficiently.

At De Tullio Law Firm, we have over 55 years of expertise managing cross border succession and estate planning matters throughout Italy. Our firm is also a full member of STEP, the world’s leading association for trust and estate practitioners.

If you would like to discuss your case, you can reach us here for a free consultation.

In order to understand more about Italian and cross-border inheritance, you might like to read our guide.

Make an Italian Will if you own property in Italy

Making an Italian will facilitates the Italian succession process


Do you own property at home and in Italy? If so, we would advise that you make an Italian will. If you are resident in Italy at the time of your death, Italian Inheritance law is applicable to your worldwide assets. Whereas if you were resident outside Italy, Italian inheritance law is applicable to assets in Italy. Either way, Italian law governs your Italian property.

Making an Italian will therefore facilitate the way forward for those you leave behind. It reduces translation costs and prevents potentially costly disputes and misinterpretations regarding your wishes. In addition, an Italian will also creates tax and administration efficiencies.

Isn’t making an Italian Will expensive? 

On the contrary, the cost of making an Italian Will is not excessive. It is a worthwhile expense to keep your affairs in order and save stress, time and expense after your death. 

Can you make a DIY will in Italy?

It is possible to make an Italian DIY will. In a previous article, we have provided a simple template for this purpose.

However, if your circumstances are even slightly complex, you could be causing more problems than you solve. If you own assets in Italy and elsewhere, this is a more complex cross-border situation. If you make your own will, without legal assistance, it can lead to mistakes or a lack of clarity. You may even run the risk of your will being invalid.

Seeking legal assistance when making an Italian will is advisable 

If you have a number of beneficiaries, if you own assets in Italy and elsewhere, if you have residential or business connections in Italy, we would always counsel taking legal advice from a specialist Italian inheritance lawyer.

In Italy, couple cannot have a joint will. Each spouse or partner needs their own separate will. Therefore, you should seek advice if you live with someone, if you are married or in a civil partnership. Likewise you should seek advice if you have children from a previous relationship or step-children. The latter may not automatically be beneficiaries of your estate.

Wills, estate-planning and inheritance are serious matters. They touch many lives in many ways. If you die intestate – without a will, you have no say in what happens to your estate. Instead, the division of your estate will be determined by the law of the country (or countries) where your assets are situated.

In Italy, succession law is based on the principle of ‘Unity of Inheritance’. This principle differs substantially from common law. Essentially, you may find that Italian assets you own are not inherited by those who you wished and, the whole estate may not be passed on in the most tax-efficient way.

You should review your will periodically

Estate planning should be an ongoing process, not a one-time event. You should review and update your will as your family and circumstances change. This would include when you make an international investment.

Once you have written your will, you should review it regularly to make sure it reflects your wishes, especially if your life changes. 

Finally …

People put off making a will because they think they do not own enough, they are not old enough, it will be costly or confusing, they will have plenty of time to do it later, they do not know where to begin or who can help them, or they just do not want to think about it.

At De Tullio Law Firm, we have over 55 years of expertise managing cross border succession and estate planning matters throughout Italy. Our firm is also a full member of STEP, the world’s leading association for trust and estate practitioners.

Please contact us if you are buying or already own an Italian property and have any questions about making or reviewing a will.

 

You may also like Estate Planning And Tax. Buying An Italian Property.