Digital Wills in Italy: Innovation and legislation

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Digital wills in Italy represent a groundbreaking development in estate planning. They offer an innovative solution while also introducing a range of new legal challenges.

The rapid advancement of technology has brought transformative changes to various sectors, and inheritance law is no exception. New technologies continue to reshape how we manage and plan for the future.

In this article, we examine the development of digital wills, their legal implications, and how technological advancements are revolutionizing the estate planning process.

Furthermore, we focus on Italian legislation and underscore the importance of consulting a law firm that specializes in Italian and cross-border succession matters to navigate this evolving landscape effectively.

To discuss your situation, get in touch for a free consultation, or click here to get all our FREE guides for foreigners planning to renoveting, buy, sell or live in Italy.

The Evolution of Digital Wills

Digital wills represent an evolution from traditional paper wills into a more modern form.

For instance, individuals can create, store, and distribute wills via digital platforms, offering enhanced accessibility and security.

However, the legal validity of digital wills varies greatly across countries.

In many cases, legislation has not yet fully addressed all the implications of this innovation. Consequently, navigating the legal landscape of digital wills can be complex and challenging.

Italian Legislation on Wills

In Italy, the Civil Code regulates testamentary succession at book second, Title III, Articles 587 to 712.

However, the Civil Code does not explicitly allow for digital wills, which poses significant challenges for those wishing to use this medium. Key articles include:

– Article 602: This article describes the requirements for the validity of holographic wills. Specifically, the will must be handwritten, dated, and signed by the testator.

– Article 603: This article governs public wills. Notably, these wills must be drafted in the presence of a notary and two witnesses. In this case, the will must indicate place, date of drafting and time of signing, and be signed by the testator, witnesses and the notary public. 

– Article 679 to 687: This section establishes terms and conditions for the revocation of wills. Importantly, this aspect remains crucial even for digital wills.

Therefore, navigating the legal landscape of digital wills in Italy requires careful consideration of these traditional requirements.

Legal Implications of Digital Wills

The lack of specific legislation on digital wills in Italy means they might not be considered valid if they do not meet the formal requirements of paper wills. This creates significant legal uncertainties, potentially leading to disputes and difficulties in executing the testator’s wishes properly.

Transitioning to digital wills raises several key legal implications:

Firstly, authenticity and security are paramount. Ensuring that a will remains authentic and unaltered presents a primary challenge. Digital platforms must incorporate robust mechanisms for authentication and data protection.

Secondly, access and storage are critical factors for the effectiveness of digital wills. It is essential that these documents are easily accessible to executors and relevant authorities.

Lastly, laws must clearly define how digital wills can be revoked or modified. This clarity ensures that the testator’s latest wishes are always respected and implemented correctly.

Addressing these issues comprehensively is crucial as digital technologies continue to reshape estate planning practices in Italy and worldwide.

The Importance of Specialized Legal Counsel for Wills

Given the complexity and legal uncertainties associated with wills, consulting a law firm specializing in Italian succession matters is crucial. An expert lawyer can provide invaluable assistance in the following ways:

Interpretation

A lawyer can interpret existing laws, helping testators understand how current Italian laws apply and identifying potential legal risks.

Drafting

They can advise on the best methods to draft wills that comply with Italian laws, leveraging digital technologies when appropriate.

Dispute Management

A lawyer can provide legal support in managing disputes over the validity of a will, ensuring the protection of the testator’s wishes.

Therefore, engaging a knowledgeable legal advisor is essential for navigating the evolving landscape of digital wills in Italy effectively.

To discuss your situation, get in touch for a free consultation, or click here to get all our FREE guides for foreigners planning to renoveting, buy, sell or live in Italy.

Finally …

Italian inheritance law is complex, which can be particularly difficult for foreigners to navigate.

To successfully understand and adhere to Italian inheritance laws, expertise and precision are essential.

At De Tullio Law Firm, we specialize in providing legal advice and support across various fields of Italian law, particularly focusing on Italian and cross-border property, inheritance, and family matters. If you require assistance, please do not hesitate to contact us.

Additionally, you may find our comprehensive guide to Italian Inheritance Law insightful and helpful.

Trusts in Italy: A Short Guide

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Understanding Trusts in Italy: A Legal Mechanism for Asset Management

A trust is a legal institution designed to separate certain assets from an individual’s personal holdings. This separation allows these assets to be entrusted to a trustee for a specific purpose, often in the interest of a beneficiary or to achieve a particular goal. Originating in Anglo-Saxon legal systems, trusts in Italy have significant differences compared to other legal frameworks. However, they gained recognition in Italy on January 1, 1992, with the ratification of the “Convention on the Law Applicable to Trusts and their Recognition,” adopted in The Hague on July 1, 1985 (law of October 16, 1989, no. 364).

To discuss your situation, get in touch for a free consultation, or click here to get all our FREE guides for foreigners planning to renoveting, buy, sell or live in Italy.

Components of Trusts in Italy: Roles and Responsibilities

In a trust arrangement, three primary entities play crucial roles: the “settlor,” the “trustee,” and the “beneficiary.”

Settlor:

The settlor initiates the trust through a unilateral act, establishing its terms and conditions.

Trustee:

Often referred to as the “trustee,” this individual or entity receives the assets, assumes ownership, and manages them in the best interest of the beneficiaries.

Beneficiary:

The settlor designates the beneficiary who receives benefits from the trust’s assets as “income beneficiaries,” or ultimately inherits the assets as “capital beneficiaries” or “ultimate beneficiaries.”

The settlor or a third party names beneficiaries in the initial trust document or identifies them later. A settlor may specify a beneficiary by name or as belonging to a particular category. In some cases, settlors establish trusts without specific beneficiaries, known as “purpose trusts”. Settlors create these trusts to achieve specific charitable objectives.

Furthermore, a “protector” commonly oversees the trustee’s actions. The trust deed may require the protector to authorize certain trustee actions.

Safeguarding Assets: The Protective Role of Italian Trusts

In a trust arrangement, the segregation of assets shields them from potential creditor claims against the settlor, beneficiary, or trustee. By design, these assets become distinct from personal holdings, safeguarding them from individual financial liabilities. Only creditors specifically related to the trust can make claims against these assets.

Asset Protection and Trust Validity:

It’s crucial to understand that asset segregation is a consequence, not the primary purpose, of establishing a trust.

A valid trust must serve a recognized purpose deemed worthy of legal protection. Establishing a trust solely for asset protection reasons, without a legitimate purpose, does not meet the requirements for validity in the Italian legal system.

Trusts in Italy: Evolution of Legal Recognition

In recent years, Italy has witnessed various attempts to establish trusts solely for the purpose of shielding assets from creditors or gaining undue tax advantages. However, such trusts faced legal challenges, with numerous court rulings, including those from the Italian Supreme Court, declaring these trusts null and void or ineffective against creditors and tax authorities.

Consequently, a sense of skepticism toward trusts emerged within the Italian legal framework, viewing them as tools for evading debts or taxes.

The landscape shifted on January 1, 2017, with the enactment of Law no. 112 of June 22, 2016. This legislation expressly validated asset separation within trusts, marking a pivotal moment in the legal recognition of trusts in Italy.

Beyond its primary objective of enhancing assistance, care, and protection for individuals with severe disabilities, this law actively encourages trust establishment. Its explicit endorsement of trusts extends beyond its specific focus, dispelling any uncertainties regarding the legitimacy of this instrument within the Italian legal system.

Legal Considerations for Trusts in Italy

Despite the growing recognition of trusts in Italy, a specific regulatory framework within Italian legislation is still absent. Consequently, reliance on foreign laws becomes necessary for trust governance. The choice of applicable law holds significant implications for the functionality and validity of trusts in Italy.

Purposeful Establishment of Trusts

Understanding that trusts can only serve specific purposes, not shield assets from creditors, is vital. While asset separation naturally results from establishing a trust, it cannot solely motivate trust creation, nor can it defraud creditors or tax authorities.

Prospective trust settlors in Italy must carefully consider both the chosen law’s provisions and jurisprudence, along with the rules outlined in the Hague Convention of July 1, 1985. Additionally, they must ensure that the trust’s constitutive clauses align with Italian public order and tax regulations.

This scrutiny extends beyond trust regulation to assess the validity of the trust’s constitutive act itself, emphasizing the importance of thorough legal examination and compliance.

Deciphering Sham Trusts: Legal Implications and Standards

In the realm of trust regulation, the concept of a sham trust has evolved to tackle situations where the settlor maintains effective control over assets purportedly entrusted to a trustee, treating them as personal property. The law will consider such trusts null and void from the moment of their inception. Assets will revert to the ownership of the settlor

Mandates of the Hague Convention

The Hague Convention of July 1, 1985, explicitly mandates that for its application, assets within a trust must be under the trustee’s control, serving the interests of a beneficiary or a designated purpose (Article 2). In Italy, trust recognition hinges on the settlor effectively relinquishing control, with assets solely vested in the trustee.

While the settlor may retain certain rights or privileges, adherence to the Convention necessitates clear trustee control over the assets.

Furthermore, in many legal systems governing trusts, settlors may reserve significant powers in trust management. However, such clauses contradict the control requirement stipulated by the Hague Convention. It renders them incompatible with trusts established in Italy.

Once a trust’s constitutive act aligns with the applicable law and satisfies the Hague Convention’s rules, it must also comply with Italian public order regulations. For instance, trusts aiming to circumvent mandatory provisions of bankruptcy law or solely creating a separate estate from the settlor’s would be deemed null and void, the latter due to lack of consideration.


Scrutinizing Self-Declared Trusts: Legitimacy and Recognition

The viability of establishing a self-declared trust in Italy is subject to scrutiny. In this arrangement, the trustee and the settlor are one and the same.

Self-declared trusts are deemed legitimate in certain legal frameworks governing trusts. However, questions arise regarding their compliance with the recognition criteria outlined by the Hague Convention. In such trusts, the settlor retains complete control over the assets, albeit in the capacity of trustee. This departure from the Convention’s control requirement raises doubts about the recognition of self-declared trusts in Italy.

Case law further complicates matters by often deeming trusts illegitimate if the settlor retains control over the assets. This therefore casts doubts on the recognizability of self-declared trusts within the Italian legal system.

Tax Implications: Trusts and Revenue Agency Guidelines

It’s crucial to note that the Revenue Agency considers trusts where the settlor retains significant powers over asset administration or allocation (referred to as “interposed trusts”) as non-existent for tax purposes. Consequently, income derived from such trusts is taxed in the hands of the settlor.

Revenue Agency Guidelines:

The Revenue Agency has issued circulars providing guidance on the application of direct and indirect taxes to trusts (Circulars of August 6, 2007, No. 48, January 22, 2008, No. 3, and December 27, 2010, No. 61).

Transfer Tax:

The transfer of assets from the settlor to the trustee is subject to gift tax at a proportional rate (4%, 6%, or 8%), depending on the relationship between the settlor and the beneficiary. Additional mortgage and cadastral taxes (2% and 1%) apply to real estate transfers. However, exemptions for certain relatives and individuals with severe disabilities apply.

Exemptions for Individuals with Disabilities:

Trusts established for persons with severe disabilities benefit from exemptions from inheritance tax, gift tax, and mortgage and cadastral taxes on real estate transfers (Law No. 112 of June 22, 2016).

Income Tax Obligations:

Trusts are treated as taxpayers subject to corporate income tax, necessitating annual income tax return filings. Resident trusts require their own tax code and, if engaged in commercial activities, a VAT number.

The trustee fulfills all tax obligations of the trust. Income is attributed directly to beneficiaries in transparent trusts and taxed accordingly. Alternatively, income is taxed at the trust level in opaque trusts.

Safeguards and Limitations: Trusts and Creditor Rights

Trusts, being gratuitous acts, remain susceptible to ordinary and bankruptcy avoidance actions, prohibiting their use for defrauding creditors. Moreover, creditors harmed by a debtor’s actions that restrict disposal or transfer real or movable property registered in public records gratuitously can take legal action without requiring a prior declaratory judgment of the act’s ineffectiveness, provided they register the seizure within one year from the prejudicial act’s registration (Article 2929-bis of the Civil Code, introduced by Legislative Decree No. 83 of June 27, 2015).

To discuss your situation, get in touch for a free consultation, or click here to get all our FREE guides for foreigners planning to renoveting, buy, sell or live in Italy.

Finally….

De Tullio Law Firm has over 55 years of expertise managing trusts and estate planning matters throughout Italy. Our firm is a full member of STEP, the world’s leading association for trust and estate practitioners.

If you need any advice regarding trusts in Italy, we are here to help. Please get in touch with us.

Construction Industry Safety Licence

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The construction industry in Italy is about to undergo a significant change in how businesses and self-employed workers manage safety on job sites. With the introduction of the construction industry safety licence, safety standards are set to rise. This new tool, brought in under Italian Decree-Law No. 19/2024, aims to enhance workplace safety, tackle the issue of undeclared work, and monitor accidents in the construction sector more closely. As of 1st October 2024, over 830,000 businesses and workers must take action to comply with the new rules.

Let’s explore what this new regulation means, who is affected, and the steps needed to ensure compliance.

To discuss your situation, get in touch for a free consultation, or click here to get all our FREE guides for foreigners planning to renoveting, buy, sell or live in Italy.

Why the Construction Industry Safety Licence Matters

Workplace safety has long been a priority, especially in high-risk industries like construction. Accidents on building sites not only endanger lives but also bring financial consequences for businesses. The construction industry safety licence represents a proactive approach to managing safety risks. By introducing a points-based system for companies and self-employed workers, this new measure ensures that businesses maintain consistent safety standards across all operations. The ultimate goal is to reduce the number and severity of workplace accidents, creating a safer environment for everyone involved.

Furthermore, this system is designed to crack down on undeclared work – a persistent issue in the construction sector. Unregistered labour not only avoids tax and social security contributions but also bypasses safety regulations, putting both workers and businesses at risk. By introducing this licence, the government aims to create more transparency and accountability in the sector.

How the Licence System Works

The construction industry safety licence will operate as a credit-based system. All companies and self-employed workers in the construction sector must acquire this licence to continue operating on job sites. Businesses must apply for the licence from the Labour InspectorateBusinesses must apply for the licence from the Italian Labour Inspectorate. In the meantime, they can submit a self-certification stating that they meet the necessary requirements to obtain it.

While businesses have until 31st October 2024 to submit their applications, they should not delay. From 1st November, any company that has not applied for the licence will have to halt its operations on construction sites, which could lead to significant financial losses. In other words, applying for the licence is not just recommended – it is essential for continued business activity.

The government has introduced the self-certification option to avoid overloading the platform where they process applications. By staggering submissions, the government hopes to streamline the process and prevent delays. However, businesses should not rely solely on this temporary mechanism. They must submit their full licence application as soon as possible to ensure they comply with the new rules.

Construction Industry Safety Licence
Who Must Apply for the Construction Industry Safety Licence?

The construction industry safety licence applies to a broad range of businesses and individuals in the sector. All companies, including sole traders, who operate in construction must obtain the licence. This includes both domestic businesses and those established in other EU member states, as well as non-EU countries, if they operate within Italy.

Self-employed workers, such as individual contractors, also fall under this requirement. Either the legal representative of a company or the self-employed worker must apply for the licence. If necessary, they can delegate this task to someone else, but they must provide the delegation in writing.

However, not all workers in the construction sector need to obtain the licence. For example, professionals who provide intellectual services, such as engineers, architects, and surveyors, are exempt from this requirement. These individuals typically do not manage construction sites day-to-day. The licence therefore targets those directly responsible for site safety and compliance.

Foreign Businesses and Workers

Even businesses established outside of Italy are not exempt from the construction industry safety licence. If a company or self-employed worker is based in another EU member state, they must either apply for the licence or provide proof of an equivalent document issued by the relevant authority in their home country. Businesses in non-EU countries must have the equivalent document recognised under Italian law. If no such document exists, foreign businesses must apply for the licence under the same rules as Italian companies.

This ensures a level playing field for all construction businesses operating in Italy, regardless of their country of origin. Safety standards must be upheld consistently, and this new licence system helps achieve that goal.

What Are the Requirements for the Construction Industry Safety Licence?

To qualify for the construction industry safety licence, businesses and workers must meet several specific requirements. These include:

1. Registration with the Chamber of Commerce, Industry, Crafts, and Agriculture:

All applicants must prove they have registered and are operating legally within the construction sector.

2. Compliance with training obligations:

Employers, managers, supervisors, and workers must have completed the necessary safety training required by law. This ensures that everyone on site knows their role in maintaining a safe working environment.

3. Valid insurance compliance certificate (Durc):

Businesses must hold a valid single insurance compliance certificate, demonstrating that they are up to date with social security contributions.

4. Risk assessment document:

Companies must have a current risk assessment document in place, as required by law. This ensures they have identified potential hazards and implemented measures to mitigate them.

5. Tax compliance:

A tax compliance certificate is also required, proving that the business is up to date with its tax obligations.

6. Appointment of a safety manager:

If applicable, businesses must have appointed a safety and prevention service manager, ensuring that someone is responsible for overseeing workplace safety on the job site.

What Happens If You Don’t Meet the Requirements for the Construction Industry Safety Licence?

If businesses or self-employed workers fail to meet these requirements, the Labour Inspectorate has the authority to revoke the construction industry safety licence. This can happen at any time if an inspection reveals that a company no longer meets the necessary conditions, such as the loss of insurance compliance or failure to maintain proper risk assessments.

However, the loss of one requirement doesn’t automatically invalidate the licence. It will remain in place, but businesses may face sanctions or other penalties under Italian law. The Labour Inspectorate will carry out random inspections to ensure compliance, so businesses must remain vigilant in maintaining their qualifications for the licence.

To discuss your situation, get in touch for a free consultation, or click here to get all our FREE guides for foreigners planning to renoveting, buy, sell or live in Italy.

Finally …

The introduction of the construction industry safety licence marks a significant step forward in improving safety and transparency in the construction sector. By implementing this system, the government aims to protect workers, reduce the risk of accidents, and crack down on undeclared work. With the deadline fast approaching, businesses and self-employed workers should act now to ensure they meet the requirements and can continue operating without disruption.

If you need assistance with this matter or anything related to construction or renovation in Italy, get in touch with us.

Italian Property Planning: Salva-Casa Decree

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The 2024 Salva-Casa Decree has received official approval by Italy’s Council of Ministers. The decree marks a significant step in simplifying and streamlining Italian property planning and construction regulations.

Salva-CasaItaly faces a significant backlog of over 4 million retroactive planning applications for illegal constructions. In fact, some estimates suggest multiplying this number by at least five when including properties with minor irregularities.

Even small irregularities in Italian property planning can complicate sales and purchases, especially if the buyer needs a mortgage, as banks require properties to be fully compliant. Furthermore, owners of properties with discrepancies can find this adversely affects a property’s resale value and marketability.

Salva-Casa decree therefore offers much-needed relief to homeowners and contributes to the broader goal of urban regeneration. Here’s an overview of what the decree entails, from regularization measures to changes in property use.

To discuss your situation, get in touch for a free consultation, or click here to get all our FREE guides for foreigners planning to renoveting, buy, sell or live in Italy.

Italian Property Planning Changes:

The primary goal of the Salva-Casa decree is to liberate properties from rigid and fragmented regulations that hinder their marketability and, at times, block access to mortgages, subsidies, and grants.

The decree focuses on addressing less severe Italian property planning cases. In effect, targeting minor discrepancies rather than offering a broad planning amnesty, as has occasionally happened in the past.

Specifically, the decree addresses:

Formal Planning Issues:

Formal planning issues stem from interpretative uncertainties in current regulations regarding property legitimacy. These ambiguities complicate assessing compliance with urban planning standards, leading to prolonged bureaucratic procedures for property development or regularization. Clearer guidance through regulatory adjustments is needed to address these challenges efficiently.

Building Discrepancies:

Often resulting from unauthorized interventions by former owners over time.

Partial Discrepancies:

Issues that could have been resolved when they first arose but cannot be addressed now due to the “double conformity” requirement.

“Double conformity” is a rule in Italian building regulations (Article 31 of Legislative Decree No. 380/2001) that demands properties comply with both the building codes in force at the time of their construction or modification and the current building codes at the time of regularization or amnesty. This requirement often complicates the legalization of minor irregularities because changes in building codes over time can make it difficult or impossible to satisfy both sets of standards. Salva-Casa seeks to simplify this process by mitigating some of these strict requirements.

Verandas

Under the decree, the following are considered free constructions:

  • Removable Panoramic Glass Windows (VePA), including those for porches within the building.
  • Sun and Weather Protection Structures, where the main component is awnings, including pergolas attached to or adjacent to buildings, as long as they do not create permanently enclosed spaces and are not visually disruptive.

Change of Use

The decree simplifies the process for changing the use of properties, ensuring compliance with sector regulations and municipal conditions.

  • Permits the change of use within the same functional category.
  • Allows changes of use between different functional categories for residential, tourist accommodation, productive, directional, and commercial purposes within specific zones such as historic centers, consolidated residential areas, and expanding residential areas.
  • Excludes units on the first floor above ground from these simplifications.

Given the exclusion, these units could potentially face stricter regulations or more complex procedures compared to others. This could make compliance with building and urban regulations more challenging and affect their access to credit and property market value.

Silent Consent in Italian Property Planning

The Salva Casa decree also introduces a silent consent regime, a significant step towards procedural simplification. This means if the municipality does not respond within the stipulated time, an application is automatically accepted.

Additionally, the decree allows for the installation of awnings and weather protection structures under free construction rules.

This regulation aims to decongest municipal technical offices overwhelmed by thousands of applications. It includes fines proportional to the increase in property value, which can be partially used for urban recovery and regeneration projects.

Costs and Penalties

Within the framework of the 2024 Salva-Casa Decree, property owners undertaking regularization face financial implications and potential penalties. Costs for regularization expenses depend on the extent of irregularities. They range from around 1,000 to 31,000 euros.

In addition, the decree mandates financial penalties commensurate with the increase in property value resulting from regularization efforts. These penalties are equivalent to double the assessed increase in property value. For instance, the regularization of structures such as verandas or additional rooms may incur fines reaching the maximum threshold of 30,984 euros.

Prior to commencing the regularization process, property owners should seek professional advice to evaluate financial consequences and potential penalties associated with compliance under the Salva-Casa Decree.

To discuss your situation, get in touch for a free consultation, or click here to get all our FREE guides for foreigners planning to renoveting, buy, sell or live in Italy.

Finally …

Understanding Italian property planning legislative changes is crucial for expatriates considering property investments, renovations or selling in Italy. Before proceeding with your Italian property project, reach out to us for assistance.

At De Tullio Law Firm, we offer personalized advice and support. With over 55 years of experience handling clients’ Italian and cross-border property, residency, family, and inheritance matters, we are right beside you.

Book a FREE CONSULTATION with one of our lawyers here.

 

Shakespeare’s Will

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In the annals of literary history, few names resonate as profoundly as William Shakespeare. Born on April 23, 1564, and passing away on April 23, 1616, Shakespeare’s life and work continue to fascinate and inspire generations of readers and theatergoers alike. His immortal plays and sonnets, captivating audiences and scholars alike, have endured for centuries. Last year marked a significant milestone – the 400th anniversary of the publication of Shakespeare’s First Folio. Reflecting on this literary treasure, it’s equally enlightening to explore the intriguing insights offered by Shakespeare’s will.

Moreover, many of Shakespeare’s plays are set in Italy, transporting the audience to the heart of Renaissance Italy. The allure of cities like Verona, Venice, and Padua becomes the backdrop for timeless tales of love, betrayal, and ambition.

Deciphering the Language of the Past in Shakespeare’s Will

Shortly before his death, Shakespeare penned a document, his last will and testament dated March 25, 1616. This historical artifact provides a window into the playwright’s world, outlining bequests, legacies, and familial ties.

Familial Ties in Shakespeare’s Will

At the heart of Shakespeare’s will lies a web of familial ties. Actively exploring the bequests to his family members – Anne Hathaway, Susanna, and Judith – provides a lens through which we comprehend the Bard’s sense of familial duty and legacy.

Executorship and Preservation

Shakespeare entrusted the execution of his will to three individuals: his son-in-law, John Hall, and fellow actors Henry Condell and John Heminges. These men played a crucial role not only in fulfilling Shakespeare’s wishes but also in preserving his works for future generations through the publication of the First Folio in 1623.

The Enigma of the “Second-Best Bed” in Shakespeare’s Will

Central to the intrigue of Shakespeare’s will is the now-famous “second-best bed” bequest to Anne Hathaway. The lack of explicit detail in the will actively fuels debates and interpretations. Was it a symbol of intimacy, a practical allocation, or perhaps a deliberate gesture? This debate encapsulates the ambiguity inherent in interpreting historical documents like Shakespeare’s will.

Connections Beyond Family

Beyond family, Shakespeare’s will actively extends its reach to friends and fellow actors. Monetary legacies for colleagues like John Heminges and Henry Condell, key figures in the publication of the First Folio, actively highlight the interconnectedness of the Elizabethan theatrical world. Interpreting these provisions becomes integral to understanding the communal nature of the Bard’s legacy, as outlined in Shakespeare’s will.

Finally …

Just as the Bard considered the allocation of his possessions and the preservation of his works in his will, we are prompted to reflect on the messages we leave behind. If Shakespeare were among us today, he might ponder the importance of preparing for the future. Just as his will ensured the preservation of his works, we too should consider the implications of our legacy.

If you own property in Italy, have you made provisions for its future? Have you considered the impact of your legacy on those who come after you? If these questions stir contemplation, perhaps it’s time to consider the guidance of professionals like the team at De Tullio Law Firm. With expertise in international estate planning, we can steer you through the process. Remember, just as Shakespeare’s legacy endures, so too does the impact of the choices we make today. Why not get in touch with us for a free consultation to discuss your will?

Estate in Abeyance: Italian Inheritance Law

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Legal heirs or beneficiaries receive the assets and liabilities of a deceased person through inheritance, which is a legal process. However, there may be a gap between the death of the individual and the formal acceptance of the inheritance by the beneficiaries. During this time, the assets of the estate remain in a state of suspension. This is known as an estate in abeyance. Italian law offers protection to the estate by appointing an administrator.

In this article, we will delve deeper into the concept of an estate in abeyance and the role of the administrator.

What is an Estate in Abeyance?

An estate in abeyance is a legal term that describes the state of a deceased person’s assets during the period between their death and the formal acceptance of the inheritance by the beneficiaries. During this period of time, beneficiaries do not have tangible possession of the assets. As a result, the Italian law allows for the appointment of an administrator to manage the estate until the inheritance is accepted.

The Role of the Administrator

The court that opens the succession appoints the administrator of the estate in abeyance. This administrator is responsible for managing the assets of the estate during the period between the death of their original owner and the acceptance of the inheritance by the beneficiaries. If a beneficiary lacks action, an administrator is required.

In the context of an estate in abeyance, “a lack of action by the beneficiary of the inheritance” refers to situations where the beneficiary of the inheritance has neither formally accepted nor renounced the inheritance and has not taken possession of the deceased’s assets. This may happen, for example, if the beneficiary is living abroad and cannot access the assets in Italy or if there is uncertainty about the ownership of the estate.

What are the responsibilities of an Administrator of an estate in abeyance?

The appointed administrator of the estate in abeyance has various responsibilities, such as:

  • Preparing an inventory of the estate and carrying out any urgent tasks required for the acceptance of the beneficiary estate.
  • Filing legal proceedings, initiating petitions to safeguard the estate’s interests, and responding to any actions brought against it.
  • Managing the estate through acts of ordinary and extraordinary administration.
  • Filing the statement of succession to settle any inheritance tax.
  • Settling any hereditary debts and legacies, subject to the court’s authorization.
  • Providing a report of their management at the end of their tenure.

Finally …

An estate in abeyance is a legal term that describes the state of a deceased person’s assets during the period between their death and the formal acceptance of the inheritance by the beneficiaries. The administrator of the estate in abeyance plays a crucial role in managing the assets of the estate during this period.

If you need legal assistance with succession and real estate matters, please get in touch. De Tullio Law Firm is here to guide you and offer wide-ranging legal protection.

You might also like our info videos about Italian property, succession and family law.

 

Italian Inheritance Law. A Short Guide

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Italian Inheritance law can be labyrinthine. At a very difficult time, those left behind find they need to navigate their way through a maze of bureaucratic procedures, red tape and paperwork. It is easy to get lost in Italian inheritance law without help. For more comprehensive information about Italian inheritance law and tax, download our free guide here.

The Italian succession process involves a series of steps that allow legitimate heirs to obtain possession of a decedent’s movable and immovable assets and bank accounts.

Firstly, heirs will need to gather all the required documentation (death certificate, residence certificate, will, bank statements and others). In order to proceed, having all the paperwork together is crucial.

Declaration of succession

Secondly, heirs will need to prepare a declaration of succession. This comprises all the assets in the deceased’s estate. Heirs must submit their declaration of succession to the Italian tax authorities.

Italian Civil Code regulates succession. It consists of transferring assets, bank accounts and properties to heirs, who are also responsible for managing any liabilities, debts and back taxes.

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The Italian tax authorities should receive the declaration of succession within one year from the deceased’s date of death. Where the value of an estate is below €100.000 and does not comprise property, a declaration is not necessary.

Italian inheritance law. What is taxable?

The third step is paying inheritance tax. In accordance with 2019 inheritance tax law, heirs who inherit Italian assets are liable for tax based on the assets in their declaration of succession.

Italian inheritance law stipulates that the following assets are liable for tax:

Immovable property (houses, shops, buildings), agricultural or building land.

Movable property, including boats, jewellery, works of art, bank and post office current accounts, money, investments such as shares, bonds, trust funds, etc.

Companies and shareholdings, with the exception of cases provided for by law which exempt heirs from the inheritance tax.

How is Italian inheritance tax calculated?

Once the Italian tax authorities receive a declaration of succession, they calculate applicable estate tax. The calculation considers any deductibles (franchigie). That is to say, the calaculation takes into account any thresholds for exemption from applicable tax[1].

The law governing taxation of inheritances and gifts is the “Consolidated Tax Registration Law” (Legislative Decree No. 346 of October 31, 1990).

For tax purposes, three bands have been created, based on the degree of kinship, for each of which a different rate of tax is applicable. Tax rates are determined on the overall value of the assets and rights – net of any charges borne by the beneficiary[2].

Band 1 inheritance law tax:

Spouse, registered partner and relatives in a direct line (parents and children, children and parents, grandparents and grandchildren)

Tax: 4% with an excess of €1,000,000 for each beneficiary

Band 2 inheritance law tax:

Other relatives up to the fourth degree (brothers and sisters, uncles and nephews, cousins).

Tax: 6% with a franchise of €100,000 for each beneficiary;

Band 3 inheritance law tax:

Others (relatives beyond the fourth degree and unrelated people such as friends).

Tax: 8% without any deductibles.

Finally …

As you can see, Italian Inheritance law and tax is complex. In addition, it may differ from case to case. Because of this, it is worth seeking expert support. Read more

Italian Law of Filiation: A Family Law Case Study

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Italian law of filiation: the legal rights of children born in and out of wedlock

De Tullio Law Firm provided legal expertise regarding the Italian law of filiation at the Supreme Court of Western Australia.

The parties involved in the case about paternity and inheritance rights emigrated to Australia from Italy in the 1960s. Before ruling on the case, the court needed to understand the Italian law of filiation.

Case Background

In this case study, although we have disguised names and circumstances, we outline the main aspects of the Italian law of filiation that The Supreme Court of Western Australia took into consideration when assessing whether or not Giovanna Rossi, the plaintiff, was a legitimate child of the late Giuseppe Rossi and was therefore entitled to claim a share of her father’s inheritance.

The plaintiff

The plaintiff, Giovanna, issued proceedings in the Supreme Court of Western Australia regarding inheritance of her father’s estate. Following his divorce from Giovanna’s mother, Mr. Rossi re-married and had other children.

Giovanna was born in 1950. Her father and mother were not married at the time. They did however get married a couple of years after Giovanna’s birth.

In Italy, at the time of Giovanna’s birth, it was illegal for fathers to recognise any children born out of wedlock. Giovanna’s birth certificate therefore gives her mother’s maiden name, Bianchi.

However, Giovanna’s birth certificate contains a note stipulating that Giovanna is the legitimate daughter of Mr. Giuseppe Rossi. The birth certificate annotation follows the marriage of Mr. Giuseppe Rossi and Ms. Sofia Bianchi in 1953.

The defendants

The defendants in this case are Giovanna’s half-siblings. They are the children from Mr. Giuseppe Rossi’s second marriage. The defendants dispute Giovanna’s legal rights as an heir and beneficiary to Mr. Rossi’s estate because Giovanna was an “illegitimate” child. They maintain that the subsequent marriage between Mr. Rossi and Ms. Bianchi did not automatically give Giovanna the status of a legitimate child.

What rights does the Italian law of filiation provide?

Firstly, the Italian law of filiation has abolished the old distinction between children born in and out of wedlock.

Constitutional law has driven important changes to legislation regarding filiation with the aim of guaranteeing equality. The consequence of this legislative process has been to stipulate a single status for all children.

Reform of Italian filiation law

Filiation law reform, Riforma della filiazione, modified the Italian Civil Code – in particular, Italian Law no. 219 of 10 December 2012.  This law states that illegitimate children – since reforms in 1975 to Italian family law, known as, “natural children” – must not be subject to any discrimination because of the circumstances of their birth.

All children are equal in the eyes of the Italian law

Both legitimate and natural children therefore have the same status: figlio. All children have equal rights and parents have a responsibility toward their offspring. A child has the right to receive care, education, assistance in case of need and a share of any inheritance.

In other words, the Italian Civil Code, as well as other Italian legislation referring to the relationships between parent and child, only permits the use of the word “child” (figlio/figlia). There is no longer any distinction such as, il/legitimate, natural or adopted.

The provision of a uniform status of filiation means that all children have the same rights to receive care, education, assistance in case of need and a share of any inheritance and parents are responsible for providing these rights. In addition, the express intention of Law 219 of 2012 extends parental responsibilities to parents’ relatives.

2012 filiation reforms are retroactive

The Filiation Reform (Law 201/2012) is applicable to all people, not only those born after a certain date. This means that the abolition of the distinction between legitimate and natural/illegitimate children is retroactive. In other words, it is applicable to parent-child relationships prior to the Law 219/2012 entering into force on 1st January 2013.

A major effect of the abolition of the distinction between natural children and legitimate children is that natural children have gained an equal right to succeed to their parents. They are entitled not only to inherit a share of their “natural” parents’ estate but also to inherit from other relatives of their parents.

How was Italian law different before reforms?

Prior to reforms, there was a huge difference between the status of legitimate and illegitimate children in Italy. Illegitimate children had none of the legal rights afforded to legitimate children.

When Giovanna was born in the 1950s, there were only two ways to legitimate children born out of wedlock and give them the status of figlio. Either the parents could marry after the birth or, the father could make a formal  statement to a notary, declaring that he was the father of the child.

Legittimato quale figlio

Giovanna’s birth certificate contains the phrase “legittimata quale figlia”. This means that following the marriage of her natural parents, Giovanna acquired the status of child. She went from the condition of being illegitimate to a condition where she was recognised as having the status of a legitimate child with all the accompanying rights of being a child.

This was in accordance with applicable Civil Code and legislation in force at that time. Also, as previously mentioned, following reforms to the Italian law of filiation, there is no longer any distinction in Italy between children born in or out of wedlock.

Case outcome

According to the Italian Law, Giovanna Rossi does have the status of a legitimate child of Mr. Giuseppe Rossi, both under current applicable Italian law, as well as under legislation applicable at the time of Mr. Rossi’s marriage to Ms. Bianchi.

The event of a marriage between her natural parents gave Giovanna the status of child and, legitimated her as a child of Giuseppe Rossi and Sofia Bianchi in accordance with legislation in force since February 1955.

The Italian Family Law reform of 2012 abolished any distinction between legitimate children and natural/illegitimate children.

The Supreme Court of Western Australia therefore judged that Giovanna was indeed the late Mr. Rossi’s legitimate child and, as such, was entitled to receive a portion of his estate as her inheritance.

Finally …

At De Tullio Law Firm we provide legal advice and support in all fields of Italian law. Our particular specialties are Italian and cross border property, inheritance and family matters. If we can be of assistance, please get in touch.

You may also be interested in Partition of Property among Family Members.
You may also like to watch our info videos on the subject of Italian inheritance law.

How To Protect An Italian Inheritance from Divorce

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How to protect an inheritance from divorce and/or separation

Separation and divorce are two of the most painful events in life. The decision to legally end a relationship can set off a long and difficult process. The upheavals and emotional challenges can be enormous. On top of this, complex legal and financial issues with short and long term implications need careful management. One aspect to consider when deciding to separate and/or divorce is how to protect an Italian inheritance.

An Italian inheritance might comprise property, movable and immovable assets and savings. Italian inheritance law specifically guarantees inheritance to so-called, “forced heirs”.

A consultation with a lawyer can provide an idea of the likely legal and financial outcomes of your situation. Generally, lawyers will provide a free initial consultation for this purpose. It is therefore worth seeking professional advice at an early stage.

Get Your FREE Guide to Planning Your Inheritance in Italy

Our PDF guide explains the ins and outs of preparing your inheritance under Italian law

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While separation and divorce is a family crisis, it is crucial to have a clear understanding of how to protect an Italian inheritance in order to safeguard and guarantee children’s rights.

Indeed, children have the right to support from both their parents. Italian Constitution and Article 147 of the Italian Civil Code states that children have this right until they reach the age of 18.

Matrimonial regimes

In May 2015, Italy introduced the so-called, ‘quickie divorce law’. This cut the amount of time it can take to get a divorce from three years to as little as six months.

There can be important consequences on estate-related issues in divorce and/or separation. These can vary according to the matrimonial financial regime the couple chose at the time of, or during, their marriage.

Couples in Italy may choose between a matrimonial regime of either community of assets, comunione dei beni, or separation of assets, separazione dei beni.

If couples do not have a notarised deed stipulating they have chosen a separazione dei beni regime, Italian law takes the view that the matrimonial regime in place is the default comunione dei beni matrimonial regime.

Expat couples married elsewhere but resident in Italy are regarded as being married according to the comunione dei beni regime. This means a couple jointly owns all assets they acquire during their marriage. In the event of a divorce, each spouse will therefore receive an equal share of these assets.

However, there are exceptions. For instance, if a partner acquired a property prior to the marriage, or received a property after the marriage as a gift or an inheritance, this would not necessarily be split equally in the case of a divorce. It is therefore important to understand your matrimonial regime and check property deeds to see who actually owns what.

Finally …

Division of Italian assets between spouses in the event of divorce or separation depends on matrimonial regimes. It is important to understand if you own the property in common with your spouse. If you need assistance or would like to discuss your personal situation. please get in touch with us.

You may also like to watch our info videos.

Italian Inheritance Tax

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Do beneficiaries need to pay tax on Italian inheritance?

This is a question we are often asked at De Tullio Law Firm. The answer is yes. Beneficiaries need to pay Italian inheritance tax.

Who calculates Italian inheritance tax?

Get Your FREE Guide to Planning Your Inheritance in Italy

Our PDF guide explains the ins and outs of preparing your inheritance under Italian law

Download now

When you become the beneficiary of an inheritance you may have to submit a statement of succession, “Dichiarazione di successione”  to the Italian tax authorities, “Agenzia delle Entrate”.

Firstly a succession procedure needs to be opened. Once this has happened, you can 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. Your filing with the tax authorities should take place within 12 months of the succession procedure opening.

Once they receive the statement of succession, the tax authorities will calculate the amount of tax due on your inheritance.

It is worth noting however, that there is no obligation to file a statement of succession if the estate does not comprise any real estate. Likewise, if assets are valued at less than Euro 100,000 and the beneficiaries are a spouse, children and/or other direct heirs.

What is taxable?

In effect, Italian inheritance tax applies to the entire net value of the deceased’s estate. This therefore includes both movable and immovable assets.

Immovable assets include houses, shops, buildings, agricultural or building land.

Movable assets could for example include, boats, jewellery, works of art, bank and post office current accounts, money, investments such as shares, bonds, trust funds.

In addition, companies and shareholdings in companies are taxable. However, there are exceptions to this which would exempt heirs from inheritance tax.

How is Italian inheritance tax calculated?

Basic inheritance tax in Italy, “Imposta sulle Successioni” equates to 8% of the estate.

However, rates depend on the relationship of the beneficiary to the deceased.

The Italian inheritance tax rate drops to 6% between siblings, relatives up to the fourth degree cousins and relatives up to the third degree. This might for instance, be a spouse’s uncle. In the case of direct heirs such as the deceased’s children, spouse or registered partner, the applicable tax rate is 4%.

Summary of Italian inheritance tax rates

Heir Rate (Aliquota) Exemption up to
Spouse, relatives in the direct line of descent  (parents, grandparents, children, children’s children…) 4% 1.000.000 euro
Brothers and sisters 6% 100.000 euro
Other relatives up to grade 4, related in the direct line of descent, related in a collateral line up to grade 3 6% No exemption
Other subjects 8% No exemption

Finally …

Because Italian inheritance can be a complex matter and each case is different, we recommend that you seek expert support and advice.

If you wish to discuss your case with us or you are feeling unsure about anything related to Italian inheritance, do not hesitate to contact us for a free preliminary consultation.

You may also be interested In Planning for the future: your Italian holiday home.

You may also like to watch our info videos on the subject of Italian inheritance law.