Cross-Border Inheritance in Italy. A Case Study

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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.

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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.

A Home in Italy: Voices of Experience

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Having a home in Italy is a dream for many

Buying a home in Italy is also a major investment. There are many aspects that need careful consideration before taking the plunge: buying structures, tax and inheritance to name but a few.

If you are considering buying a property in Italy, think long-term. Make sure it’s for the right reasons and that you have done your research absolutely thoroughly. We asked some of our clients who own Italian property, what tips they would give to prospective buyers in Italy. Here’s a selection of what they said:

If you think an Italian property is potentially an easy, passive income generator, think again …

To be a success, you will need to work hard to create, market and operate an attractive holiday rental business. If you need to borrow money to finance the purchase of your Italian holiday property and you already have a mortgage at home, you’ll have two debts to service and in reality, your rental income may not cover repayments for your Italian property.

Remember too, that all the maintenance and running costs will be your responsibility and unless you are living locally, you will probably need a management company – or very understanding local friends – to deal with the property on a day to day basis for you.

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“Identify your reasons for buying a home in Italy …

… for example: are you looking at retirement, relocation, holiday home or a buy-to-let investment? Always use a licensed, unbiased real estate agent who can work with you to achieve your objectives. Don’t feel pressurised to buy. Take your time – it took us over five years before we committed to our purchase”.

“Ask lots and lots of questions

When choosing a home in Italy, the priorities are about personal preferences, choices and taste. We bought our property for investment purposes, which is totally different. When you are buying a property for buy-to-let purposes, you are starting a business so you need a plan. There are so many things to consider: exit strategies, growth forecasts, potential rental incomes, neighbourhood, property taxes, amenities, infrastructure, transport and future developments in the area. This is where it pays to get professional advice and second opinions from good real estate agents, lawyers and financial advisors”.

“Get your sums right. What can you really afford?

It’s not just about the cost of buying a home in Italy, you might need to add renovation costs or there may be extra costs for shared areas. Not to mention running costs. Investigate and understand the Italian property market. It’s totally different to the US property market. When it comes to selling your property later, even if it’s a really attractive proposition, you need to understand that it’s not likely to get sold fast.”

“Bring in the professionals to help with buying a home in Italy.

Seek legal advice early on. Use your own independent English-speaking solicitor, who has absolutely no links to your seller, estate agent or developer. Do not sign anything prior to your lawyer’s review. Do not make any money transfers until they have been checked and signed-off by your lawyer. If anybody uses terms like capital growth or rental yields when viewing a property, be very sceptical. Ask to see evidence. Before deciding whether it’s a good buy, factor in all the likely costs, taxes and above all, don’t forget maintaining the property and managing the rentals. Think carefully about the pros and cons of different ways of buying the property and check for the best deal on mortgages and currency”.

“Viewing the property at different times of day is important.

For example, we viewed a property during afternoon siesta and it seemed perfect … a really attractive property in a quiet location. But, when we revisited the place another day around mid-morning, we discovered we could hear the loud rumble of traffic on a nearby main road. Consult a good property lawyer before making any final decision. Many lawyers will offer a free consultation to discuss your general situation. Ensure you double-check everything with your lawyer and a tax advisor before making any decisions. The person at the local bar or the village shop might know a thing or two from experience, but those experiences shouldn’t inform your decision-making.”

“Research is key when buying a home in Italy.

When we were researching properties online, the maps on website listings were not always 100% accurate and showed the nearest village rather than the property itself. This is for safety reasons as houses used as second homes are often empty for long periods of the year and can become targets for burglars. Contact the estate agent and get coordinates for a satellite view of the property and surrounding area. Study it closely. In many parts of Tuscany, for example, it’s difficult to find a country house within walking distance of a village. It means that you, or your rental guests, will have to drive to the nearest shops, bars and restaurants.”

“Understand the rules regarding Italian tax …

… so that you know what you are in for. Remember that when purchasing property in Italy, you need to take into account agents’ commission, notary fees, and registration fees as well as future property tax and other costs. If you are planning to live in Italy, find out about residency rules. Have your financing in place and get a good international residential conveyancing lawyer.”

“Always negotiate on the price …

… use a reputable real estate agency and engage an Italian lawyer. Never part with any money unless you have the express approval of your lawyer. If, like us, you are buying off-plan or during construction of a new build, getting independent legal advice is even more important. Your lawyer will make sure that all the necessary contractual, bank guarantees and insurances are in place to protect you if something goes wrong like the completion of the building does not occur on time.”

“Get a good lawyer to represent you in the purchase.

If possible agree legal fees up front. Find a reputable estate agent to assist you in your property search. But don’t rely on the agency to put together contracts and handle the conveyancing. Make sure your professional team speaks your language. Make sure that they fully understand your requirements and that they don’t waste time showing you properties or areas that don’t match your brief. Ensure that you fully understand all the costs, taxes and fees involved with the purchase. It can impact hugely on your budget. Always instruct a surveyor to carry out a survey to ensure that there are no structural, planning, zoning or geological issues with the property. Take your time. Don’t rush into the first deal presented to you. If it sounds too good to be true, it probably is. Take a step back and get a second opinion.”

“Start by asking yourself: how easy it’ll be to sell this property should you need to?

Location, location location! If you want to make money, this will only actually materialise when you rent or sell the property. Until then it’s all just a theoretical paper profit. If you are looking at the property as an investment, think about the property. Why would people want to rent it? Why would people want to buy it from you? The reasons will tell you whether the property is likely to be a good investment.”

Finally …

De Tullio Law Firm has been guiding overseas buyers with their Italian property investments for over 55 years. If you need any advice about buying or selling a property in Italy, if you need an independent second opinion or, if you would just like to discuss your options with a specialist, we are here to help.

You may also be interested in Buying property in Italy. You may also like to watch some of our info videos on Italian property, succession and family law.

Buying Italian Property. Advice for Expats

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If you are buying Italian property, never sign any paperwork without fully understanding the implications

The most important piece of advice for expats buying Italian property is that they should never sign any paperwork without getting it checked.

If you don’t fully understand all the legal implications of paperwork, your signature could result in potential financial and/or legal problems. In addition, your signature may negate any possibility of complaints at a later date.

We would always recommend that you use an experienced, independent property lawyer to safeguard your Italian purchase. A surprising number of expats buying Italian property don’t use a lawyer. Instead, they take a DIY approach or use someone unqualified such as the estate agent or vendor. It is not uncommon that this ends up being a stressful and expensive mistake.

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Expats buying in Italy may encounter language barriers

If you are not a fluent Italian speaker, it’s important to engage a lawyer who speaks your language. This ensures you not only have crucial legal advice but also a someone who can act as a legal translator. As previously mentioned, the issue of signing paperwork is critical. Expats should only sign documents that they fully understand, which may mean that documents need translating. In fact, when you complete the purchase, the Italian notary may require a translation of the deed of sale. In addition, you may also have to engage an interpreter at completion. However, if you have a lawyer who speaks your language, this will not be necessary.

In order to avoid conflicts of interest, the lawyer should be independent of the estate agent and/or the vendor.

Make sure your lawyer has a license to practice. In other words, your lawyer should be a member of the Italian Bar Association. The lawyer should also have public liability insurance.

Estate Agents

It is worth bearing in mind that regardless of how charming and friendly an estate agent is, at the end of the day, an estate agent is a sales person working on a commission from the sale of the property. They are not qualified to provide legal advice and do not conduct due diligence on properties. The base their sales information on what the vendor tells them.

An estate agent may ask you to sign an agent’s brokerage contract, which could include up front fees.

Make sure that your estate agent is from a reputable company. Italian estate agents must register with their local chamber of commerce. They should have a certificate issued by the local town hall as proof of their professional registration.

Surveys

Many expats buying Italian property decide not to invest in the knowledge and expertise of a professional surveyor.

Construction quality varies hugely in Italy and you cannot know everything about a property just from viewing it with the vendor or estate agent. Buyers should ensure the property they want to purchase is actually worth the money they are paying. This means checking there are no fundamental problems. Amongst other things, structure, planning, zoning, ownership and geological location.

Certificate of Habitability

It’s also surprising how many expats buy a property that has neither electricity nor water connections. If a property has no utility connections, it may indicate a problem. It suggests that the property may not have a Certificate of Habitability. If this is the case, the property may never gain mains utilities despite what the vendor or estate agent claims. When it comes to reselling the property, later on, it is likely to be a struggle to find a buyer.

Buying an Italian off-plan property

Expats should exercise caution if buying an off-plan property. There are many risks entailed with buying Italian off-plan property. One of the major risks is that a developer becomes insolvent during the build. Never make large payments as a deposit to secure what appears to be a dream home.

Ensure, amongst other things, that the developer or building company has a building licence for the property before parting with any cash. Don’t be afraid to ask the property developer about their portfolio, their history of delivering quality buildings, on time. Ask for references. If you are buying a resale property, check that there are no hidden fees or legal complications.

Take your time. Don’t be rushed

When buying a property in Italy, don’t rush into a purchase and, never buy a home on impulse. Think long term. Always assess the pros and cons, research the area and understand all the present and future legal and tax aspects.

Familiarise yourself with the process of buying Italian property

Because the process of buying a property in Italy can move quickly and expats should be prepared for the purchase completion taking between four to eight weeks on average.

The purchasing process in Italy is completely different to the UK, the USA and many other parts of the world. First, the buyer makes an offer on the property. If it’s accepted, then the buyer and vendor will sign a reservation offer and the buyer will pay a small deposit. Second, the buyer and seller will sign a preliminary contract at which point the buyer will pay another deposit, usually a minimum of 10% of the sale price. Finally, at completion, the new owners pay the balance of the sale price, along with other costs and taxes.

It is important that expats appreciate all the financial and legal implications of each stage of the process.

Finally …

For over 55 years, De Tullio Law Firm has been providing international clients with independent legal advice. We offer services in all the major fields of Italian law. Our particular expertise is in cross-border real estate, family law and inheritance matters. If you would like more information, or you need advice and support with your Italian property purchase, please get in touch with us.

Italian Property Survey – Need One Or Not?

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Should you have a survey before you buy property in Italy?

Because for most people buying a property is a major expense, not commissioning an Italian property survey is a false economy.

A surveyor, “geometra”, will provide you with invaluable information and support during the property purchasing process. This information will help save you money both prior to and after completion.

Buyer beware!

In Italy, property is purchased under the principle of ‘caveat emptor’ or ‘buyer beware’. In other words, the onus is on the buyer to ensure that there are no issues with the property. This includes land purchases.

If you purchase an Italian property and subsequently discover a problem, it is always time-consuming, frustrating and costly to resolve.

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Amongst other things, an Italian property survey will reveal hidden defects, illegally built structures, planning and zoning issues. In addition, a geometra will highlight any areas of the property that require repair or maintenance. It is important to be aware of all these issues. After completion, you will have to pay to rectify any defects. You may even have to take legal action through the Italian courts to get a refund from the vendors.

An Italian property survey can save thousands of Euros

It is important to make sure you are not overpaying for your Italian property. A common misconception is that the vendor’s or estate agent’s valuation is based on Italian property market prices. Obtaining a valuation as part your survey will give you the true value of a property. The valuation will take into consideration any defects uncovered and repairs needed. This will ensure you pay a fair price for your property. A survey can therefore save thousands of Euros.

The importance of an Italian property survey

The support of a surveyor during the home buying process is invaluable, but it can also be extremely useful after completion. Depending on the type of survey you commission, the report will give detailed information about parts of the property that may require attention in the future thus allowing you to budget those costs going forward. In addition, a surveyor can give you preliminary advice on any plans you may have to extend or alter the property in the future.

Finally …

For over 55 years, De Tullio Law Firm has been providing international clients with independent legal advice throughout Italy. We are specialists in cross border property, inheritance and family law.

We can guide you through the whole purchasing process or organise the whole process, including an Italian property survey, on your behalf. Get in touch with us.

If you would like further information about buying an Italian property, you may find our buying in Italy guide useful.

 

Resident or Domiciled in Italy for tax purposes?

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Are you resident or domiciled in Italy?

In this article, we compare being resident or domiciled in Italy and explore the tax implications.

According to Italian tax law, individual tax residency is pursuant to tests. An individual may find themselves tax resident although they only have relatively minor contacts with Italy. This might be property ownership, frequent visits to the country, or business interests in Italy.

If the Italian tax authorities determine that an individual is tax resident in Italy, the taxpayer is subject to worldwide taxation in Italy.

Tax would therefore be applicable for both income and estate tax purposes. It would include an obligation to report all assets wherever they are in the world. In addition to financial assets and accounts, it requires an individual to report all non-financial assets such as, cars, houses, planes, artworks.

Non-Italian nationals with interests in Italy should pay particular attention to these matters to avoid becoming an unintended Italian tax resident. Because this is a complex topic and, each case is different, we recommend that you seek advice and guidance from your lawyer and accountant.

Applicable tax laws determine whether an individual is resident or domiciled in Italy

Domicile

Domicile is generally determined by an individual’s intention to permanently or indefinitely reside in Italy. Often, an individual will physically have a presence in the country. Domicile is a legal concept. Its rules have been established by way of case law rather than a statutory definition. There are three types of domicile.

Domicile of Origin

This is usually acquired from an individual’s parents.

Elected Domicile

By actually residing in Italy, the individual demonstrates the intention of remaining permanently or indefinitely in Italy. In this way, an individual may acquire an elected domicile – also known as a domicile of choice. Where an individual later gives up elected domicile, domicile of origin is automatically re-acquired.

Domicile of Dependency

This is the domicile a minor holds. When the minor reaches 18 they then acquire elected domicile.

Residence

Domicile takes into account subjective elements of an individual’s intentions. The country where an individual habitually lives determines residence.

The EU test for habitual residence is based on an individual’s interests rather than by a particular duration of residence. In 2014, the European Commission published a practical guide on the Habitual Residence Test.

Fiscal implications

Under Italian tax law, three alternative tests determine an individual’s tax liability in Italy. The tests are registration, residence and domicile. If an individual meets one of the three tests for more than 183 calendar days per annum, this triggers an Italian tax liability.

Registration test

This is a straightforward test. If an individual has registered as a resident with their local municipal office – in the comune where the individual’s residential address is located, they are liable to pay tax in Italy.

Residence test

The residence test comprises two components.

The first component looks at whether physical presence in Italy is regular and continuous, as opposed to sporadic and occasional. If an individual spends time both in Italy and another country, periods of presence outside of Italy are compared with the periods of presence in Italy. This ascertains where presence is prevalent for tax purposes.

The second component of the residence test is more subjective. It is based on an individual’s intention to stay and live in Italy for the foreseeable future. A variety of aspects will determine an individual’s intention to live in Italy on a regular basis. In order to determine intentions, authorities will look at an individual’s conduct, social and personal habits. Authorities will also consider working relationships, family relationships, business and personal activities.

Italian tax liabilities arise if an individual’s physical presence in Italy is prevalent compared to an individual’s presence outside of Italy. For example, a regular and continuous presence in Italy is deemed to exist even if an individual travels abroad on a frequent basis. In other words, if an individual is away from Italy for extended periods of time but then returns as soon as possible. This would denote that an individual maintains Italy as the principal centre of their social and family relations.

Domicile Test

This third test aims to define the place where an individual has their principal centre of interests for business and or social reasons. In this context, ‘interests’ include personal, social, moral, familiar, economic, professional and business interests and relationships.

The domicile test revolves around an individual’s intention to establish and maintain their main centre of relations and interests in Italy.

There are tax implications based on the nature, extent and quality of the connections between an individual and Italy, compared with an individual’s connections with any other country.  As a result, an individual who primarily lives abroad but, maintains their principal centre of interests in Italy satisfies the domicile test.

The domicile test therefore requires careful and comparative evaluation to balance all the facts related to business or personal relationships and connections with Italy.

Case Law regarding the legal concept of domicile

In 2011, the Italian Supreme Court referred to a 1991 decision of the European Court of Justice relating to a non-tax matter. The Italian Supreme Court concluded that, in the case of multiple relations and ties with different countries, where the location of the principal centre of an individual’s interest cannot easily be determined, a prevalent consideration should be given to the relations of a personal nature.

However, more recent decisions suggest that extensive economic interest may outweigh personal connections in establishing an individual’s domicile. Thus, an individual may still be liable to pay tax in Italy.

In a ruling in April 2012, the Italian Supreme Court held that a tennis player living in Monaco qualified for tax residency in Italy. This, despite the family proving that they lived in Monaco. They provided proof through children’s school attendance records, household utility bills, membership of local clubs. The ruling took into consideration the fact that the tennis player maintained significant interests and management positions at several family-owned Italian companies. The individual mainly managed these matters from Italy.

In this case, residence identified the taxpayer’s habitual and regular place of living, while domicile identified the taxpayer’s main center of personal, financial and business interests.

Resident or domiciled. Tax guidance

The Italian tax authorities have issued specific guidance on determining whether individuals are resident or domiciled in Italy. Circular n. 304/E of December 2, 1997. Circular 304 provides instructions for the tax agency’s control and audit activities, which should include the collection and review of the following.

– All information contained in the tax agency data base system.

– Copies of all public documents relating to purchases. This includes real estate, gifts, formation of companies and entities, capital contributions to companies and entities.

– All information on transfers of money from or to foreign countries.

– Information regarding the taxpayer’s family relations in Italy.

– The taxpayer’s economic interests in Italy.

– Information about taxpayer’s intention to remain and live permanently in Italy.

Finally …

De Tullio Law Firm specialises in Italian and international property law. We have over 55 years of helping overseas nationals obtain Italian residence. If you need help or would like to discuss your situation, please get in touch with us.

 

You may like to read How to get a mortgage in Italy

Parental Rights in Italy – Italian Family Law

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In Italy, children have the right to a personal relationship with both parents

It is important to understand parental rights in Italy for those living or moving to the country. That way, if you have children, you can be in the best position to make decisions for the future.

All EU countries recognise that children have the right to a personal relationship and direct contact with both parents. This also applies if the parents live in different countries.

What about parental rights in Italy in the event of divorce or separation?

It is important to determine whether the children will live exclusively with one parent or alternate between parents.

If both parents live in Italy but are unable to reach an agreement, you may have to take the matter to court. A judge will then decide on living arrangements and parental rights. The court’s decision will consider the child’s best interests and determine your custody rights. It will also decide where the child resides.

In situations involving more than one country where, for example the parents live in different countries, the courts responsible for handling cases of parental rights are those in the country where the child is habitually resident. You can agree with your spouse that the court ruling on your divorce should also rule on parental rights.

Where the child has more than one nationality, the law of the country with which the child has the closest connection applies. Under section 19 of of Act No 1995/218, if the child has more than one nationality and one of these nationalities is Italian, the Italian nationality takes precedence. It is the nationality of the child at the point the case goes to court that decides this.

Parental rights in Italy: 3 types of child custody

1. Exclusive custody – one parent has sole custody and makes all day-to-day parenting decisions. The other parent has limited responsibilities.

2. Joint custody – gives both parents equal parental responsibilities and custody. However, in the interests of the child or children, they are likely to live predominately with one parent. In theory, this approach is the best for a child as they have access to both parents.

3. Alternating custody – means both parents can exercise their parental responsibilities within predetermined custodial time periods given. (This form of custody is rare).

Cases where the judge grants exclusive custody to one of the parents have become rare in Italy. Sole custody would require proof that it would be in the best interests of the child.  However, even in cases of sole custody, both parents will need to consult on major decisions relating to the child. Moreover, in cases where joint custody is applicable to disputing parents, visiting arrangements and a timetable will be established. Similar to exclusive custody cases, these arrangements give the parent that does not reside with the child or children limited access rights.

Marriage and registered civil partnerships

in order to determine parental rights in Italy, married or registered couples, will have been legally separated for six months and must have filed for divorce. They will need to go to court regarding both their divorce settlement and arrangements for their child or children. Following divorce, the child will live according to care arrangements determined by the court.

Unmarried couples and partners

In the case of unmarried couples, or estranged married couples, there is no requirement to go to court. Parents can simply agree between themselves on parental responsibilities and living arrangements. However, we strongly recommend seeking legal advice to formalise and record arrangements. Within the EU, a married father has the same rights as the mother. Where a couple cannot agree arrangements between themselves, the court in the child’s country of habitual residence determines parental rights and responsibilities.

In theory, both parents have equal parental rights and responsibilities for their child or children. In practice, however, where there is no legitimate reason otherwise, the mother’s home is more likely to be the main residence of the child.

Same-sex couples

On the subject of same-sex couples, a 2013 Italian Supreme Court decision (601) granted sole custody of a child from an earlier marriage to a mother living with another woman. The court declared that, “there is no scientific certainty proving that a minor cannot grow up in a balanced way within a same sex couple”. 

Parental rights in Italy in adoption cases

The Italian law has always stipulated that a couple must be married in order to adopt a child. Italian law 184/1983 governs adoption and foster care. The law, in principle, only permits married couples, who must be of the opposite sex, to adopt. According to the law, there are no restrictions on foster care. In a limited number of situations, the law provides for adoption in certain cases by a single person. In addition, some courts have interpreted this to include the possibility of unmarried couples adopting a stepchild.

From an inheritance point of view, no distinction is made between legitimate, natural and adopted children – all have equal rights.

Finally …

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

 

You may also be interested in Italian divorce law and EU regulations.

You may also like our info videos.

Testamentary Succession in Italy: Italian Inheritance Law

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Close family members take precedence in Italian inheritance

Testamentary succession is determined in accordance with the provisions of a lawful will and the applicable rules of law

In Italy, the disposal of an estate occurs in compliance with the decisions of the testator as set out in an Italian will. Or, where the deceased was intestate, i.e the deceased did not have a will, in accordance with Italian inheritance law.

Italian inheritance law dates back to the Roman Law tradition. Because of this, testamentary succession in Italy follows the principle that a decedent’s close family members merit special protection. This therefore partially limits the right of the testator to dispose of assets entirely as s/he wishes.

Get Your FREE Guide to Planning Your Inheritance in Italy

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Testamentary succession and foreign wills

Following the death of a testator with an Italian will, the competent authorities register and publish the will. However, in the case of foreign wills, Italian law states that an Italian Public Notary must authenticate the will before probate can begin.

Managing testamentary succession documents drafted in a foreign language and subject to a foreign jurisdiction in Italy can present difficulties. In fact, a notary cannot publish or legalise a will drafted in a foreign language. The notary will therefore require an Italian translation. You will need to engage a court-sworn translator to translate the will. Costs for this may be substantially higher than drafting an Italian will in the first place.

Drafting a will in Italian minimises the risk of conflicts among heirs following the death of the testator. It also ensures that the Italian authorities have a clear and direct understanding of the legal framework.

The exclusion of certain heirs from testamentary succession in Italy

As mentioned above, one of the principles of Italian legal succession is the protection of the family. Whether you die with or without a will, you cannot exclude some heirs from the succession.

Italian law calls these forced heirs. They must receive a part of the deceased’s assets. This is known as the reserved quota. Italian Civil Code also determines what quota of assets a testator can freely dispose of, without limitation. This is known as the available quota. 

Forced heirs, reserved and available quotas in Italy

The table below  shows the reserved quota for forced heirs and the available quota dependent on relationship to the deceased:

Forced heirs Reserved quotas and availability
Spouse (or registered partnership) (in the absence of children and parents) 1/2 to the spouse (or registered partner) = 1/2 available quota
One child (in the absence of a spouse or registered partnership) 1/2 to the child = 1/2 available quota
Two or more children (in the absence of a spouse or registered partnership) 2/3 to children (divided into equal parts) = 1/3 available quota
Spouse (or registered partnership) and only one child 1/3 to the spouse (or registered partnership) 1/3 to the child = 1/3 available quota
Spouse (or registered partnership) and two or more children 1/4 to the spouse (or registered partnership)  1/2 to children (divided in equal parts) = 1/4 available quota
Spouse (or registered partnership) and parents (in the absence of children) 1/2 to the spouse (or registered partnership)  1/4 to parents (divided into equal parts) = 1/4 available quota
Parents (in the absence of children and spouse or registered partnership) 1/3 (divided into equal parts) = 2/3 available quota
If there is a Will, the law reserves a quota of inheritance only for the spouse (or registered partner) and children (if the deceased had no children there is a reserved quota for parents who are still living), so if the Will is valid, other relatives cannot make claims.  


Applicable laws

It is also worth mentioning that non-Italian nationals may be subject to the testamentary succession laws of their own country. If the deceased was resident in Italy at the time of death, Italian Inheritance law applies to the deceased’s worldwide assets. Whereas if the deceased lived outside Italy, Italian inheritance law is only applicable to assets in Italy.

For foreign nationals resident in Italy, the introduction of EU Succession Regulations, known as Brussels IV, may also impact how you manage your testamentary succession. 

Finally …

Italian inheritance is a complex matter. In addition, if you own assets in more than one country, this can further compound the complexity. We recommend you seek independent legal advice regarding your personal situation. If we can be of assistance, please get in touch.

For more information about Italian succession and inheritance, you may find our Italian Succession Guide useful.

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

You may also be interested in Legitimate Heirs. Rights of “Forced Heirs” in Italian Inheritance

Before buying a house in Italy. What should you know?

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What you absolutely must understand before buying a house in Italy

In order to make your purchase as safe and efficient as possible, before buying a house in Italy, you should understand how the process works and who you should involve.

When you visit a country for a holiday, cultural differences are charming and exciting. This changes dramatically when you make an investment or move to that country.

Personal liability

You may have already bought a house in your own country. Maybe you are English and the estate agent passed all relevant information to your solicitor to process the purchase. Perhaps you are American and you used an independent and qualified buying agent.

In both cases, the most risk free and secure method for you, as a buyer has become the assumed. It is probably the only way you would consider purchasing a property. In the UK, USA and other common law countries, we take it for granted that our interests are so well protected that it is very difficult to unwittingly make a mistake.

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Italy is a member of the European Union so you can assume certain rights and similarities. However, when it comes to personal liability, Italy can be very libertarian. In other words, in Italy if you want to protect yourself and your interests, you can. If you don’t want to, that’s fine too.

The consequences, and ultimately the lessons, are yours alone. This mindset, for better or for worse, is practically non-existent in Northern Europe and many English-speaking nations.

Don’t assume anything

Before buying a house in Italy, you shouldn’t make any of the same assumptions that you would in your own country. You should not assume that the typical process is naturally geared to protect your interests. Nor should you assume that everyone respects the law. And, do not assume that rectifying a mistake will be a quick or cost free fix. Above all, just as you wouldn’t at home, believe everything an estate agent or vendor tells you!

Do your homework before buying a property in Italy

As you may know from your own country, you need to conduct certain checks and searches. Legally binding contracts need signing and you will have to pay deposits.

In Italy it is perfectly legal for an estate agent to provide a reservation offer contract  and a preliminary contract on behalf of buyer and seller. Following the signing of these contracts, the buyer makes deposits. The final step is to have an Italian public notary (notaio) sign-off on the sale.

Estate agency contracts are often standard pre-printed forms. Many foreign buyers assume that the notaio, who according to law  must oversee the property transaction, is the equivalent of a lawyer or qualified realtor. People believe that if anything untoward comes up, the notaio will be aware of it and inform the relevant party. This is absolutely not the case. The notaio must remain impartial and only checks the final deed of sale document.

Neither the estate agent nor the notaio are responsible for doing your due diligence – you are!

Therefore, anything omitted or glossed over in any contract will not be apparent. If the person who draws up or checks is not working for you, you are taking a risk signing it and making deposits. On top of this, you should know that the Italian language versions of contracts will prevail in a court. You can of course read and check your own contract. However, understanding depends on your grasp of Italian and/or your trust in the translator you or the estate agent engages.

Don’t take unnecessary risks

Your estate agent will of course advise you that you do not need a lawyer, which is correct. Italian law does not oblige you to engage a lawyer. However, without a lawyer you are purchasing a property entirely without independent representation. Not only that, you are choosing not to protect yourself legally in a country with one of the slowest and most complex legal systems in Europe.

In Italy prevention is always better than cure and, infinitely cheaper! If you aren’t prepared to prevent problems, you need to prepare to deal with problems that may arise later.

It is possible that a property may have debts attached to it which the seller has not disclosed. It is very often the case that the previous owner has made illegal changes to the property or, as is common, the property features an illegal swimming pool. Or, perhaps you are planning to build a pool and the seller tells you that won’t be an issue.

If you don’t have your own lawyer, no one else is going visit the property on your behalf to check plans and the actual situation. This means you could easily end up with an illegal property or a property you can’t alter. At this point, you will need to throw a substantial amount of money at the property and lawyers to try and resolve the problem.

A small amount of due diligence at the beginning of the process with someone who speaks your language will avoid risks before buying a property in Italy.

Finally …

Before buying a house in Italy, engage a local lawyer experienced in property matters. This should be someone you choose, not someone the estate agent or vendor recommends. Choose a lawyer who speaks your own language. That way, you not only get legal advice but also translation. Your lawyer should also be able to recommend a surveyor, builders and all manner of other professional services. In addition, you can appoint your lawyer as your power of attorney in case you are unable to get to Italy or attend completion. Again entrusting this responsibility to anyone with potentially conflicting interests, such as an estate agent, can be extremely risky.

Before buying a property in Italy, why not talk to us? De Tullio Law Firm can advise and guide you throughout your Italian property purchasing journey. We have over 55 years of experience working with clients on their Italian and cross border property, family and inheritance matters. Book a Free Call with one of our lawyers.