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).

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).

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.

The Times: Chaz and Lucy’s Italian move, with expert advice from Giandomenico De Tullio

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“We moved to a farmhouse in Puglia for la dolce vita” is how The Times headlines the story of Chaz Oldham and Lucy Akhurst. They, the couple in the photograph, are an English couple who have chosen to make their new home in the heart of Italy, a five-bedroom farmhouse in the hills with 20 acres of land, 15 minutes’ drive from the sea and 8 minutes from Alberobello, famous for its thousand Unesco-listed trulli. This is an area already well visited by foreign tourists, especially the French, Swiss and Germans.

Chaz and Lucy’s Italian move, with expert advice from Giandomenico De Tullio

The Times article tells you their story, the proximity to the world of cinema, the moves, the inspirations, the farm in Devon, the dream of France but falling in love with Italy, and the purchase of the house with a huge roof terrace with a 360-degree view, which convinced him to buy. What truly stands out, however, is the financial potential of such a decision.

 

A brief aside on the prices of apartments in the area where Chaz and Lucy bought: at the time of their purchase (2020) the average price per square metre was €1,836, while today it is €2,374 (source: The Times), which highlights the value of investing in property in this region. Real estate in Italy, particularly in sought-after areas like Puglia, is not only a lifestyle choice but a sound financial strategy. With property values steadily increasing, the potential return on investment is significant.

 

Then there was the application to the Municipality of Monopoli for a building and renovation permit (obtained in just over a year), the hiring of Puglia Pools to build the swimming pool, the renovation of a wing of the house which – in 2025 – is estimated to yield between €1,800 and €2,400 per week. This demonstrates how renovating and renting out properties in Italy can generate consistent income, making it a lucrative option for those looking to invest in the real estate market. Moreover, the cost of living in Italy, where they now live, is a fraction of the UK, while the produce is fresh and km0.

 

The rise in property prices, coupled with the attractive rental market, shows why investing in Italian real estate, especially in regions like Puglia, is an excellent opportunity. You can find more insights at the end of The Times article, where we also provide tips for British citizens looking to purchase property and apply for residency in Italy. You can read them there or take advantage of our free preliminary consultation in the language of your choice.

 

Click on this link to choose the time that suits you best or email us at info@detulliolawfirm.com.

 

Full text of The Times’ article here: https://www.thetimes.com/article/53afb046-b3ac-4422-b7b0-02231a555480.

 

Cultural Heritage in Italy: The Legal Landscape

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Dreaming of purchasing a property in Italy? The country’s magnificent buildings, historic cities, towns, and villages make the Italian real estate market particularly enticing. However, within the heart of these charming landscapes lie historical architectural treasures, subject to legal protections. In this article, we explore the role of legislation aimed at preserving Italy’s cultural heritage.Cultural Heritage in Italy

Understanding Italy’s Cultural Heritage Legislation

Cultural assets, encompassing movable or immovable properties, benefit from State protection due to their artistic, historical, or architectural significance. Since May 1st, 2004, Italian legislation governing this matter is the code of cultural heritage and landscape (Legislative Decree January 22, 2004, n. 42).

Italian Cultural Heritage: Limitations on Immovable Properties

The code imposes restrictions on the transfer of ownership or possession, particularly concerning immovable properties. These regulations vary depending on the owner of these assets.

Notification Requirements for Italian Cultural Heritage Properties

For immovable properties owned by individuals or companies to attain cultural asset status, they must be notified by the public administration. Such notifications, documented in property registers, can be challenging to verify, primarily post the enactment of Law No. 1089 on June 1st, 1939. It is therefore crucial to ascertain the property’s ownership history to verify the existence of notifications.




Cultural Heritage in Italy

Reporting Obligations for Transfers

Any transfer of ownership or possession of cultural assets mandates filing a report with the superintendent of the asset’s location. This report, due within 30 days of property purchase or inheritance acceptance, requires comprehensive details of the involved parties, asset particulars, and transfer conditions.

Penalties for Non-compliance with Italian Cultural Heritage Law

Failure to submit the report within the stipulated period constitutes a criminal offense, leading to severe penalties. These penalties include substantial fines ranging from €1,500 to over € 75,000 and potential incarceration for up to one year.

Italian Cultural Heritage Properties

Right of First Refusal

In consideration-based transfers like sale or exchange, the State or relevant local authorities hold the right of first refusal. This right must be exercised within 60 days from report receipt, conditionally suspending the transaction until then. However, there’s no right of first refusal in inheritance, donation, division, share transfer, merger, split, or mortgage creation scenarios.

Finalization of Ownership

If the right of first refusal remains unexercised after 60 days, ownership transfers to the buyer. However, if the report is filed after the 30-day legal period, the right of first refusal must be exercised within 180 days. Until this period expires, the asset remains with the vendor.

Finally …

At De Tullio Law Firm, our expertise lies in property and inheritance matters in Italy.

If you have any inquiries regarding the transfer of cultural assets, feel free to reach out to us. We are pleased to provide you with a complimentary preliminary consultation.

Schedule your consultation. 

 

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?

Italian Roots

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Embracing Italian Roots: Lorenzo Musci’s Journey of Resilience and Family Bonds

In the heart of Santeramo in Colle, a small town in the Province of Bari, Italy, in 1939, a poignant reunion took place. Lorenzo Musci, now approaching the age of eighty, had returned to his Italian roots after twenty-seven years in the United States. The purpose of his visit? To meet his grandchildren, born to his son who had decided to return to Santeramo.

This touching journey is a story of family, emigration, and resilience that spans several decades. The following is based on a text in the National Diary Archive of Pieve Santo Stefano. The archive contains the stories and images of hundreds of Italians who have left Italy and traveled across the world, from the 19th century to today.

Emigration to the USA

Lorenzo Musci’s emigration to the United States took place in 1912. He and his family settled in Ohio, where, life centered around hard work. Lorenzo’s five older children later primarily worked in the Akron rubber factories that produced tires for automobiles. However, Lorenzo’s expertise lay in agriculture, a tradition passed down from his ancestors.

To provide for his family, Lorenzo purchased a farm located not far from Akron. When they were young, the children attended a nearby school. The early years were not without hurdles, as Lorenzo’s wife struggled with their rural life. Eventually, she and Lorenzo moved to Akron, leaving the farm in the hands of Lorenzo’s second son, Luigi.

Nostalgia Beckons …

The desire to return to her Italian roots never left Lorenzo’s wife. After seven years of living in America, she was determined to return to her Italian roots. Lorenzo, however, had different thoughts on the subject. Daily arguments ensued, but it was impossible to persuade her to stay in the United States. Eventually, he gave in. The year was 1919, when the family embarked on their return journey to Italy.

A Bittersweet Reunion: Rediscovering Italian Roots

Returning to Italy after seven years in America stirred feelings of nostalgia and hardship. The aftermath of World War I had left Italy grappling with numerous difficulties, and poverty was pervasive. Despite the adversities, the family persevered. However, their yearning for America grew stronger. After nine months in Italy, Lorenzo’s wife decided that they should make their way back to the United States.

Return to the USA

Lorenzo and his family once again set sail for the United States. This time, accompanied by a young relative. This relative would later marry Lorenzo’s second son, Luigi.

Italian Roots Rekindled

In a large family with several children, only one of Lorenzo’s sons chose to make Italy his permanent home. During their initial return to their Italian roots, Lorenzo’s son had married and started a family. Although the United States held its allure, he found it impossible to return there with his parents and siblings, as he had built a life in Italy. This included owning a café close to the Santeramo Town Hall.

It was in 1939 that Lorenzo’s wife encouraged him to embark on a journey to visit their son in Italy and meet his grandchildren, whom he had never met before..

Mistaken for an American Spy …

However, Lorenzo’s return was not without its share of difficulties. Immediately after arriving in Santeramo, a Carabinieri Marshal came to see him. He issued Lorenzo with a travel document. Lorenzo would need to present the document to authorities in every town he visited during his stay.

Connecting with Italian Roots: Turismo delle Radici

The recurring cycle of emigration and return defined Lorenzo Musci’s life, mirroring the intricate choices that countless emigrants confront. His life story showcases the resilience of emigrants who left their corner of Italy in search of a better life. It is a story of family, sacrifice, and the enduring connection between two countries. Lorenzo’s journey, marked by departures and returns, is a narrative of love and longing, reflecting the experiences of countless Italian emigrants during the early 20th century and beyond.

In 2024, the Italian government is set to unveil an array of exciting events and initiatives under the banner of “Turismo delle Radici” or Roots Tourism. This unique form of travel is specifically designed for Italian nationals and individuals of Italian descent residing outside of Italy – a global community that boasts approximately 80 million people.

The project, spearheaded by the Italian government, will offer a remarkable opportunity for overseas Italians, individuals with Italian heritage, and enthusiasts of Italian culture to explore ancestral ties and connections with Italy. It will provide a profound immersion into the rich tapestry of traditions, culture, cuisine, wine, unforgettable experiences, and heartfelt emotions that characterize Italy’s essence.

Finally …

As lawyers who specialize in Italian and cross-border inheritance law, we are often asked to look into origins and inheritance. De Tullio Law Firm is therefore thrilled to be part of various Turismo delle Radici projects. Stay tuned for event updates and more. Additionally, if you require assistance with Italian inheritance matters, please do not hesitate to reach out to us.

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

Procura. Applying A Power of Attorney in Italy

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Unable to travel to Italy? Do you need to set up a procura?

Do you need to deal with Italian legal matters but you cannot travel to Italy in person? The solution may be to confer a Power of Attorney. This is known as a procura in Italian.

How does an Italian procura work?

A Power of Attorney (PoA) is a legal instrument. It allows someone (an agent or attorney) to act on behalf of someone else (the principal). A procura specifies exactly what powers a principal gives to an agent.

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Generally speaking, if you use a PoA for an Italian property transaction, it is not advisable to grant a PoA to a real estate agent.  This is to avoid any conflicts of interest. As estate agents work on a commission basis, they may have a vested interest in making the sale.

What are the different types of procura in Italy?

There are two types of PoA in Italy.

Procura speciale

The principal gives limited powers to an appointed agent. The agent can only conduct specified tasks on behalf of the principal. For example, for an Italian property purchase, if you cannot be in Italy to complete the sale, you can grant this power to your appointed agent who can then sign the deed of sale on your behalf.

Procura generale

The principal grants a wide range of powers to their agent. In effect, the agent can do almost anything the principal could do.

The principal can revoke either type of PoA at any time.

Does Italy recognise foreign Powers of Attorney?

If you draw up a PoA in your home country, you will need to take steps to get it recognised overseas. To do this, your PoA will require an apostille.

Apostilles certify official documents for international use. Apostilles are valid in all jurisdictions that are signatories to the provisions of the Hague Convention (1961) on the mutual recognition of documents.

Italy, the UK, the USA and Australia are all signatories to the Hague Convention. In the UK, you can obtain apostille services through the Foreign Commonwealth & Development Office. The U.S Department of State is responsible for apostilles in the U.S.A and in Australia you should contact the Department of Foreign Affairs and Trade.

Finally …

A PoA is a sensitive legal matter. You are entrusting the management of some or all of your legal and financial affairs to someone else.

You should only appoint someone you are confident will act responsibly in your interests, has the necessary skills and is competent, reliable and willing to act for you. We therefore recommend that you confer your Power of Attorney on a professional such as a solicitor.

While you are waiting for formalisation of an apostille, we are able to check the validity of signatures. We can provide a provisional confirmation that these appear genuine.

Before you prepare a PoA applicable in Italy, it is worthwhile seeking legal advice from a cross border legal specialist. If you would like to discuss your situation, please get in touch with us at info@detulliolawfirm.com

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Apostille for Italy: What is an Apostille?

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How can you ensure official documents are recognised abroad?

If a document is intended for use in another country, you may require a formal recognition in the form of an apostille. The procedure is generally described as a “legalisation” although it is sometimes referred to as “consularisation”. In order to use an official document overseas, you may therefore require an apostille. What exactly does this mean?

In this article, we are going to explain apostilles and how you can go about getting them.

What is an apostille?

Firstly, an apostille is a stamp that is placed on a document by a designated competent authority. The stamp should read, “Apostille” and confirms that an official source has issued your document and that the receiving country can accept the document as authentic.

Secondly, the Hague Convention (1961) governs mutual recognition of documents between signatories. Therefore, apostilles are valid in countries that have adopted provisions of the convention.

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

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The information in an apostille follows a prescribed format

1. Country of issue

2. Who has signed the document

3. The capacity in which the person signed the document

4. Details of any seal on the document

5. Place of issue

6. Date of issue

7. Issuing authority

8. Apostille Certificate number

9. Stamp of issuing authority

10. Signature of representative of issuing authority

What type of documents require an apostille for use abroad?

All apostilles are similar. However, not all documents are processed in the same way. There is a wide variety of documents that may require an apostille. It is therefore important to prepare properly and submit the correct version for authentication with an apostille.

For example, you may require apostilles for documents of an administrative nature such as, birth, marriage and death certificates or a grant of probate or a power of attorney.

If you are, for instance, doing business overseas, you may require an apostille for official documents. These might include extracts from commercial registers or other registers; patents; notarial acts such as property titles; notarial attestations of signatures. If on the other hand, you want to study abroad, you may need an apostille for school, university and other academic diplomas.

Where can you obtain an apostille?

This depends where your document originated so check that and then apply for an apostille in the issuing country.

Signatories to the Hague Convention designate who can deliver apostilles. For example, in the UK, the Foreign Commonwealth & Development Office provides apostille services. In the USA, the U.S Department of State is responsible. In Australia you should contact the Department of Foreign Affairs and Trade.

The authorities in the receiving country may require a translation. In this case, you will need to get the translation of your document certified rather than the original document. Depending on requirements and the type of document, you may need a translation by a sworn translator.

As the subject of apostilles can be somewhat complex, the Hague website has published a useful brochure, which includes a FAQ: The ABCs of Apostille

Finally …

If you need support with an apostille for Italy, please get in touch with us. While you are waiting for formalisation of an apostille, we are able to check the validity of signatures. We can provide a provisional confirmation that these appear genuine.

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.

 

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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.

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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.