What Is An Avvocato?

What is an Avvocato?The steps involved in an Italian legal career

The Italian word, Avvocato, has three equivalent terms in English: lawyer, solicitor or attorney.

The path to becoming an Avvocato in Italy involves several years of study and internships. Future lawyers first need to complete a Bachelor’s Degree in law, (Laurea in Scienze Giuridiche), which takes three years. To proceed along the path towards practising law, students require a two-year post-graduate degree (Laurea Specialistica in Giurisprudenza) or, a further five-year Master’s Degree (Laurea a ciclo unico Magistrale in Giurisprudenza).

Once the aforementioned qualifications have been attained, an Italian attorney then needs to complete a two-year internship at an established law firm and must pass the Italian Bar Exam before being able to practice.

After passing the Bar Exam and registering with the Italian Law Society (Consiglio dell’Ordine degli Avvocati), an Italian attorney can legally practice Italian law nationwide, not just in the geographical area where the Bar Exam was passed.

What is an Italian attorney’s scope of legal practice?

The legal competencies of qualified  Italian solicitors are wide-ranging. They comprise civil, criminal, labour, bankruptcy, financial, administrative, inheritance and succession cases as well as courtroom trials and appeals.

Are Italian lawyers subject to a code of conduct?

Yes. A strict ethical conduct code governs the Italian attorney’s performance of their duties. First of all, Italian attorneys must base their conduct on respect for integrity, dignity and decorum. Failure to comply with the ethical code of conduct leads to disciplinary proceedings.

The legal profession must be carried out with honesty and integrity. It is not permissible for an Italian attorney to start legal action or take part in a proceeding, which may be construed as a lawyer acting in bad faith.

The Italian legal code of conduct safeguards the client; an Italian attorney has a duty of care and loyalty towards a client. An Italian attorney behaving contrary to clients’ interests, or taking on a case that they are not competent to conduct, would be a breach of the code of conduct.

Another fundamental duty for an Italian attorney is confidentiality. This refers to services provided to a client and information given to a lawyer by the client, or known to the lawyer through other circumstances. Confidentiality remains valid for information about former clients, or where the attorney, despite knowing the details of a case, does not agree to take on a case.

The relationship between an Italian attorney and a client is fundamentally based on trust; an attorney must defend a client’s interests as well as possible within the framework of legal representation and in compliance with the law and the ethical principles of the legal code of conduct.

Finally …

At De Tullio Law Firm, we have extensive knowledge and experience of Italian and international law. For over 55 years, we have been providing expert legal services throughout Italy. Whatever your legal need in Italy, get in touch with us for a free consultation.

You may also be interested in De Tullio Law Firm: Combined experience of 55 years

 

Italian Inheritance: Division of An Italian Estate

How does the partition of an Italian Estate work?

Partition of Property among Family MembersA testator’s estate is composed of assets and rights. If more than one heir is nominated in a Will, a condition of joint-ownership of rights and duties concerning the inheritance needs to be established among co-heirs.

The co-heirs receive the estate in accordance with their inheritance quota.

This may either be apportioned by the testator’s Will or in accordance with the law and the beneficiaries acquire any assets due and/or take on the liabilities of the testator.

Partition of an estate refers to the division of the total assets, or liabilities, between beneficiaries.

It should be noted that each co-heir has the right to request the partition of an estate at any time following the testator’s death, unless otherwise stipulated by the testator in their Will.

All co-heirs, or their successors (legatees), must take part in the partition. Failure of one or more beneficiaries to participate in the partition, renders their rights invalid and this cannot be rectified later by absent co-heirs.

According to Italian legislation, the partition of an estate can be executed through three methods:

  • Amicable (bargaining) partition
  • Judicial partition
  • Testamentary partition

Amicable partition

An amicable partition is made through a contract with the purpose of converting co-heirs’ legitimate rights to a quota of the estate into rights on single assets forming part of the estate. This ensures that the value of the assets individually assigned (known as de facto quotas) equate to the value of the joint ownership quotas.

Judicial partition

Should co-heirs disagree on the way the partition of an estate has been made, each of them can refer it to the courts. A judgment of how the partition of the estate will be determined by:

  • Inventory OF THE INHERITED ESTATE:

including the assets which have been gifted to the co-heirs by the deceased.

 

  • APPRAISAL OF ASSETS:

according to their market value. The testator may have nominated a person or organisation in a Will to conduct the appraisal. If assets of the same category are divided, an estimate is not needed. In other cases, the estimate of individual assets is essential in order to create portions of value corresponding to the quota designated for each co-heir by the testator, or if the decedent was intestate, by the Italian law.

 

  • POSSIBLE SALE OF INDIVISIBLE ASSETS:

before partition of an estate, it may be necessary to sell real estate property or to assign property to a co-heir in return for a corresponding amount of money to be shared among the other co-heirs.

 

  • Inventory OF PORTIONS DUE TO EAch HEIR:

which are as many as the co-owners in proportion to the respective quotas.

 

  • AD HOC:

Any gifts received by co-heirs prior to the testator’s death are taken in to consideration. This calculation will be taken in to account for partition of an estate to prevent any unequal treatment among the co-heirs.

 

  • ASSIGNMENT OF QUOTAS:

The decision of who gets what assets. Where inherited quotas are equal, assets will be assigned as lots. Attribution refers to asset apportioning if quotas are of unequal size.

Testamentary partition

A testator can stipulate in a Will, the portions to assign to each co-heir, or can simply lay down terms in order to set quotas.

It could be that the effective value of a testator’s assets does not cover the quotas stipulated in a Will. Again, where co-heirs dispute the partition of an estate, they have the same recourse: amicable or judicial partition.

Finally …

If you have been named as co-heir to an Italian estate and you live abroad, it may be difficult for you to manage or be involved in the succession procedures or participate in the partition of the estate in Italy.

If you need independent advice or if you need to confer a Power of Attorney to sign inheritance documents and paperwork, a specialist Italian inheritance lawyer can assist you and will work in your best interests.

 

You might find De Tullio Law Firm’s comprehensive Guide to Italian Inheritance useful. If you would like to discuss your situation, you can get in touch with us for a free consultation

You may also beinterested in Accepting an inheritance with the benefit of inventory in Italy

Italian Inheritance. Why draft an Italian Will?

Generally speaking, Italy recognises the validity of international Wills. However, it is advisable for foreign nationals who own assets in Italy to draft an Italian Will.

What are the main advantages to having an Italian Will?

  • Italian Inheritance. Why draft an Italian Will?minimises misunderstandings and/or conflicts amongst heirs.
  • It facilitates legislative, linguistic and jurisdictional matters with the Italian authorities,
  • reduces inheritance tax on properties and assets and
  • simplifies the whole Italian inheritance procedure.

Where can I get help drafting an Italian Will?

If a foreign national decides to dispose of Italian assets by means of a Will in Italy, an Italian attorney, will be able to advise on all aspects of Italian Inheritance Law.  It is a good idea to engage the services of an Italian attorney familiar with both the Italian and the testator’s national jurisdictions.

Italian inheritance law stipulates that a certain portion of the testator’s assets must be inherited by immediate family members. This is known as, “Forced Heirship”. Forced heirs are the decedent’s spouse and/or children, or other parties to whom a testator cannot legally deny a portion of the assets.

It is important to follow the Italian inheritance procedure accurately. Engaging the services of a qualified and experienced Italian Lawyer is therefore highly advisable.

It is also important to remember that to be entitled to draft a Will in Italy, the testator should be at least 18 years old, of sound mind and be the legal owner of the assets referred to in the Will.

What is a denuncia di successione?

Following the death of a testator, the Will must be published with the assistance of an Italian notary. Once published, a testator’s heirs or executors can proceed with Italian Probate, Denuncia di Successione in Italian.

Probate must take place within 12 months of a testator’s death. This procedure requires making a declaration of all relevant assets to the Ministry of Finance, and liaising with the tax authority –  Agenzia delle Entrate. The relevant tax office is determined by where a testator was resident at the time of death.

A specialised Italian inheritance attorney can manage or assist throughout the inheritance procedure and can also finalise the procedure by registering the new owners of inherited assets in the Land Registry, Voltura in Italian.

It is also important to bear in mind that inheritance tax will need to be paid. Tax rates are calculated based on heirs’ relationship to the testator and the value of inherited assets.

Finally …

At De Tullio Law Firm, we have produced a comprehensive Guide to Italian Inheritance. It contains legal advice about the Italian Inheritance process, which we hope you will find useful. Every case is different so, if you would like to consult a specialist Italian inheritance lawyer for a free consultation, please contact us.

You may also e interested in How to write a Will

A deceased relative of mine owned Italian assets. How should I proceed?

 

Italian assetsWe received this question from a reader wondering how to proceed with Italian assets. We hope that you find our answer helpful. If you have any queries related to Italian property or inheritance law, please send your questions to us. We are here to help.

How is Italian inheritance governed?

  • According to the law of intestate succession, if the deceased died intestate (without a Will), the assets are transmitted to the descendants or the surviving spouse following the principles set out within the Italian Civil Code.
  • According to a Will, which is a legal document signed by the deceased in order to dispose of his assets after his/her death.

Type of Will

In broad terms the Will can be of two types:

  1. Italian Will: This has to be published and registered with the competent Italian authorities after the death of the testator.
  2. Non Italian Will: According to Italian inheritance obligations, a foreign 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 to ascertain whether or not the Will is applicable to Italian assets or not. If the assets are not expressly disposed of by the Will, the right to succession follows the rules of the Italian Civil Code.

In either case, an Italian inheritance should be formally accepted or renounced. accepted or renounced. This can be done tacitly or explicitly.

  • Tacit acceptance is implied. It occurs if, for example, the heir, by disposing of or otherwise dealing with inherited Italian assets, shows an intent to accept them.
  • An explicit acceptance occurs by making a public deed signed in front of a notary.

Probate

Within twelve months of the testator’s death, heirs or executors  should file for Italian probate with the competent authority, which is the tax office – Agenzia delle Entrate. Which branch of the Agenzia delle Entrate needs to receive the probate filing is determined by where the testator was resident at the time of death.

Heirs or executors pay the relevant inheritance tax connected with the inheritance. The amount of inheritance tax payable is determined by the relationship of heirs to the deceased and the value of the portion of assets inherited.

Once probate is complete, it is possible to re-register immovable assets in the names of the heirs.

Seek professional advice

Trying to navigate the Italian inheritance procedure without the assistance of an experienced Italian inheritance attorney can be difficult, especially if you are abroad. We would recommend that you seek professional advice and guidance to manage the process sympathetically and efficiently.

Finally …

For more in-depth information about Italian succession, you might find our Succession Guide useful. If you would like to discuss your case, you can reach us here for a free consultation.

Off-Plan Properties in Italy. Preliminary Contract

Checklist for off-plan preliminary contractsOff-Plan Properties in Italy. Preliminary Contract

Legislative decree 122/2005 introduced very strict requirements for preliminary contracts concerning investments in off-plan properties in Italy.

Article 6 of the above mentioned legislative decree states that the preliminary contract for an off-plan property should contain:

  • full description of the parties.
  • identification details of the property, including plot cadastral references
  • description of the property including outbuildings for the exclusive use of the buyer
  • details relating to the building permit or application for a building permit. The law explicitly requires the mention of any issue associated with the building permit
  • technical data relating to the building. The law requires a summary of the technical data in the preliminary contract. Such data will be described in detail in the attachment concerning technical specifications (capitolato). Such specifications cannot be modified without the agreement of both parties
  • deadline for completion.
  • method of payment. The entire price should be declared, also specifying the amounts paid as a deposit. Payments should be executed using bank transfers or other means that are traceable and/or that are clearly traceable
  • details of the bank guarantee. The bank guarantee should be delivered at the signing of the preliminary contract. Such a guarantee should be in place prior to, or upon signing the preliminary contract
  • the presence of mortgages or any other type of loan. In the presence of a mortgage held by the construction company covering an entire development parcelled out amongst several buyers, the notary will not legally be entitled to sign the Deed of Sale until the parcelling out of said mortgage to individual buyers has been completed
  • a list of contractors together with proof of their identities

The preliminary contract should also have the following attachments:

  • technical specifications of the property, detailing all materials to be used in the construction, a list of agreed finishes and fittings.
  • cop of the plan submitted to file the request the building permit.

What are the consequences if the preliminary contract lacks one of the elements set out in art. 6?

A preliminary contract not in compliance with the requirements of article 6 could be deemed null and void on the grounds that it breaches Italian legislation.

Since the above mentioned legal requirements are set out in order to protect the interests of the buyer, only the buyer can object to the validity of the preliminary contract.

Finally …

There are a number of risks involved in off-plan purchases. We have written several articles  about off-plan property purchases in Italy. You can use our search tool to find more on the off-plan subject.

We would always recommend that you engage your own lawyer to ensure that your interests are completely protected before you sign any off-plan property-related paperwork, including a preliminary contract. If you need advice, we are here to help.

Off-Plan Properties in Italy. The Italian Law

Where do you stand from a legal point of view?

Off-Plan Properties in Italy. The Italian LawAnother in our series on the important issue of off-plan property purchases in Italy. Use our useful search tool to find our other articles on off-plan property purchases.

Investing off-plan is where a purchaser makes a commitment to buy a property from a developer that has not yet been built or is in the process of being built.

This type of investment can hide any number of risks, the major one being that if the developer is declared bankrupt, the buyer may well end up out of pocket.

Italian legislation provides a number of measures to protect buyers from this scenario but, the buyer needs to ensure that these protections are in place – as always, but particularly when it comes to off-plan property purchases, caveat emptor.

Law 122/2005 declares the obligation of the developer to offer a surety bond. This is to guarantee the buyer for the money deposited prior to the transfer of ownership of the property, in case of bankruptcy or default.

According to art.1 of Law 122/2005, the developer is obliged to offer a surety bond at the latest when the preliminary contract, required in all off-plan transactions, is signed. In the absence of a surety bond the preliminary contract will be considered null and void unless the buyer explicitly expresses that it should prevail. The surety has to be clearly mentioned in the preliminary contract.

According to article 2 of Law 122/2005 the surety needs to be a bank, an insurance company or a financial broker authorised by the Bank of Italy. The surety bond guarantees the buyer repayment of any money paid as a deposit.

In order to request excussion of the guarantee (the process or proceedings whereby a creditor must take action against a principal debtor before proceeding against a surety provider or subsidiary debtor), the buyer has to formally withdraw from the preliminary contract. A written request of withdrawal by the buyer, together with evidence of deposit payments, is sufficient to activate the guarantee. According to Italian legislation, the surety provider should refund the deposit within 30 days.

According to art.3 of Law 122/2005 the surety bond also covers damages arising as a consequence of building defects in the property, even if discovered after the signing of the Deed of Sale.

The building defects in property are covered by art. 1699 of the Italian civil code. The guarantee for such defects has a statute of limitations of ten years from the finalisation of the building works in question.

Where the seller is a different legal entity from the developer of the property, the seller is legally required to request a copy of the surety bond from the developer and provide this to the buyer. This is part of the seller’s contractual obligations is referred to in the Deed of Sale.

Finally …

If you are considering investing in off-plan property in Italy our advice is to engage your own independent legal adviser. Bear in mind that a lawyer recommended by a developer or seller may have a conflict of interests in this matter so we advise you to choose your own lawyer. If you need any help, we are here to help.

 

Off-Plan Properties in Italy. Advice

This article was originally provided by De Tullio Law Firm to the British Consulate in 2011. Although the article pertains to a Calabrian case, information is relevant to all off-plan properties in Italy, wherever they are located.

If you are looking for additional information about off-plan properties purchases in Italy, you will find a series of articles on the subject if you use our search tool, including a post here about your legal position regarding delivery delays.

Buying off-plan homes in Calabria

A large number of British citizens who have bought holiday property in Calabria have recently contacted the British Consulate in Naples. Many of these transactions have been completed to the satisfaction of the purchasers but, a significant number have run into difficulties with the lawyers involved or with the developers. The Consulate has drawn the matter to the attention of the Italian authorities who are investigating, but we strongly advise purchasers encountering problems of this sort to seek legal advice about obtaining redress.

Advice for anyone purchasing off-plan properties in Italy

  • Seek legal advice before signing a contract and paying any money upfront:  afterwards, it may be too late. Choose your own independent lawyer. We advise you not to use lawyers recommended by the developer or contractor so as to avoid possible conflicts of interest.
  • Similarly, use an independent Notary Public to draw up and at the signing of the deed of sale. You are not obliged to use the notary proposed by the developer or contractor and in fact, to avoid possible conflicts of interest, we would advise against it.
  • Remember that the Italian version of the contract will prevail in an Italian court. So, either commission the translation yourself from an independent translator or have any translation which is provided checked for discrepancies by an independent qualified person.
  • The amount paid in a deposit for an off-plan development should be up to around 10%. Seek legal advice if you are asked for more than that.
  • As the building work progresses, the developer should accompany any request for further payments with a list of the work done (‘stato avanzamento lavori’). This can be verified by an independent surveyor or architect before any payment is made. This procedure should be indicated in the preliminary contract.
  • When you buy an off-plan property, you are entitled to receive a bank loan guarantee that should be annexed to the preliminary contract. In case of bankruptcy that bank loan guarantee will often represent the only protection of your investment. If you are obtaining bank loan guarantees, have a qualified professional check that they are legally compliant.

Finally …

At De Tullio Law Firm, we are property law specialists. We operate throughout Italy. If you are considering investing in off-plan property in Italy, please get in touch with us for a free consultation. We are here to help.

Usucapione: Adverse Possession

What is Usucapione?

Usucapione is a legal procedure which can give you ownership of a property in Italy without need of any specific title such as a deed of purchase or a Will and without any agreement with the owner of the property.Usucapione

Usucapione is similar to Adverse Possession. It is a legal situation which is connected with possession of a property which must not happen with hostility.

How does it work?

The possession of whole or part of a property and or land must take place, with public knowledge. After a number of years which can be 10 or 20 depending on the circumstances, the possessor can obtain the legal title and become the legal owner of this property; this happens even if you aware the owner of the property is someone else. Read more

Legal action against real estate agents in Italy

According to the Law 39/1989, realtors and real estate agents in Italy must be registered with their local Chamber of Commerce. If not registered, a real estate agent is liable to fines and other penalties and will not be entitled to agreed commissions.

legal action against real estate agents

This legislation also provides an important guarantee for the consumer, in that the law requires the agent to have adequate insurance cover in order to practise their profession. The scope of this professional insurance policy must provide the consumer with cover in the event of negligence on the part of the agent. Read more

Buying a house in Italy: Taxes