International Succession

Foreign nationals with a second home in Italy are subject to international succession procedures

International succession pertains to the estate of a person who dies in a country other than that of their nationality or residence.

It is likewise applicable to someone who leaves movable or immovable assets in a country other than that of their citizenship or residence. If, for example, you are a foreign national who owns a second home in Italy, your estate will be subject to international succession procedures.

In August 2015 new EU regulations governing inheritance came into force. These regulations, known as Brussels IV, aim to simplify and accelerate international inheritance matters and make cross-border succession procedures more efficient. Prior to the introduction of Brussels IV, international succession laws differed from country to country.

Since its introduction, there have now been a number of cases regarding the interpretation of the new EU regulations. One such international succession case came to court in Salerno in 2018.

The case involves two brothers who co-owned three properties in Italy. In 2016 one of the brothers, an Italian citizen, died in New York where he was a resident. He died intestate meaning he didn’t leave a Will.

One of the decedent’s six brothers is a co-owner of the three Italian properties. He took legal action to wind up the Italian property co-ownership. He subsequently filed an inheritance claim for his brother’s share in the property.

Article 24 paragraph 1 of EU Regulation 1215/2012 (so-called “Brussels I bis”) governs dissolutions of co-ownerships. It entrusts such cases to the court of the country in which the property is located. In this case therefore, Italy.

To make life simpler for those you leave behind, it is crucial to have a Will.

For estate divisions, the court in Salerno applied the Brussels IV regulation.

Article 4 of the regulation establishes that the jurisdiction which rules on the succession as a whole, is that of the country where the deceased was habitually resident at the time of death. However, Article 10 provides for subsidiary jurisdiction of courts in which the estate is located – if the deceased was a national of that country at the time of death.

Returning to the case in question. The court of Salerno considered that the deceased was habitually resident in the State of New York. It therefore ruled that the case should be governed by the law of New York State.

Adding to the complexity of this case, rules of private international law are also relevant. The rules governing New York private international law provide that the law of the place where the property is located applies to successions concerning immovable assets.

The judge has adjourned the case until parties produce U.S. regulatory sources. This is something of a landmark case. It sets a precedent inasmuch that judges have the power and duty to ascertain foreign regulatory sources of their own volition.

Although Regulation 650/12 aspires to harmonise international succession, in terms of effectiveness it is confusing and open to interpretation.

For international succession and division of estates, Italian inheritance law specifically provides for rights to so-called, “forced heirs”. Their inheritance quota is guaranteed.

However, in countries with common law systems, such as the UK and the USA, testators can rule on how estates should be divided.

Brussels IV allows testators to make a choice of law in their Will

International Succession Planning

Article 22 of Brussels IV allows individuals resident overseas to elect which country law should govern their inheritance.

Where individuals have multiple nationalities, they may elect to have any one of their nationalities apply to their Italian assets.

In effect, this means that you can avoid any jurisdictional confusion after your death. However, you need to take action by making, “Choice of Law Codicil” in your Will.

Finally …

If you are in the process of drafting, or reviewing, your Will, you should consider aspects such as foreign matrimonial regimes, usufruct, tax consequences, joint ownership structures and other foreign proprietary rights before deciding which law to apply to the devolution of your estate.

Should you need further information concerning the topic, our legal professionals will be happy to discuss your situation. Please contact De Tullio Law Firm at the following email address: info@detulliolawfirm.com

 

You may also be interested in Applying A Power of Attorney in Italy

Safety Requirements on Home Renovations in Italy

Renovating an Italian property. Health and safety law

Who is liable for compliance with safety requirements on home renovations in Italy?

In the case of even minor construction work the, “works manager” is responsible for safety. This is usually an architect, engineer or designer. However, if the owner of a property directly procures the services of a worker, the homeowner is acting as the works manager.

This means that the homeowner is responsible for safety. Likewise if there is an accident, the homeowner is liable to criminal and civil consequences.

Imagine you hire a plasterer to render a wall and the plasterer falls off a ladder. Or, you find an electrician to rewire your property and the electrician gets electrocuted.

You, as the homeowner, are liable. Even if you are not around at the time of the accident. As the legal owner of the property, in the eyes of the law, you are the employer of the injured worker.

The risk of criminal and civil prosecution

Your liability for the accident is not only of a criminal nature, for culpable injuries caused to the worker, but also of a civil nature.

In other words, you may be liable to pay compensation. Compensation for a broken limb can amount to several thousand euros. In a worst-case scenario, compensation may be enough to see your property seized.

This is a very intricate legal issue based on technicalities regulated by Italian law. If you are planning refurbishment work on your property in Italy, make sure you meet  safety requirements.

Homeowner liabilities

When planning refurbishment works, such as renovations or painting, you are legally responsible for ensuring safety requirements.

Italian law takes the view that anyone regarded as, “non-professional”, such as a homeowner, who procures the services of a third party to carry out any type of home improvement, is responsible for ensuring that workers operate in accordance with health and safety legislation.

Safety requirements. A case study

Recently, the Supreme Court examined an appeal filed by a homeowner plaintiff who had commissioned a construction company to paint the exterior walls of a cottage. During the work, a painter fell through a hole in the paving. The painter fell several metres into the basement and tragically later died. The hole that caused the accident had previously been covered with boards. However, the boards had been removed by another worker and replaced with polystyrene, which was not strong enough to bear the weight of the painter.

The court of appeal upheld previous rulings which established that the homeowner had a duty of care in relation to the execution of the contract. In this case, the court identified several failures. In the first instance, the absence of a risk assessment plan. Secondly, a lack of maintenance on walkway around the cottage and risks posed by the opening into the basement. Thirdly the court considered that there had been a failure to supervise and inform workers at the property.

Safety requirements are an employer’s responsibility

The court found the homeowner at fault for these failures. Safety obligations are the exclusive competence of an employer, who in this case was the homeowner. In effect, the homeowner was acting as the painter’s employer. While the work was of a “domestic” nature, the court found that the homeowner was not exempt from performing the duties of works manager. In other words the accident occurred because of the homeowner’s failure to take responsibility for his employee’s safety. And the homeowner’s negligence to act in the role as designated works manager.

In cases such as this, it is, therefore, crucial to underline the homeowner’s obligation to point out any dangers on site and wherever possible, to provide for their elimination before work starts. Unless a homeowner can prove they exercised a duty of care and took all measures to provide a safe working environment, they will be held liable.

Health and safety requirements in Italian building contracts

When a homeowner engages a contractor, it is important to have a written contract. This should indicate that compliance with safety regulations is the contractor’s responsibility. This way it becomes clear, from a legal point of view, that the contractor is responsible for safety on home renovations in Italy.

Finally …

Whether you are building a new property in Italy, or renovating an existing Italian property, having the right building contract is vital to ensure that everyone involved knows their rights and responsibilities.

De Tullio Law Firm is a legal firm present throughout Italy. We have over 55 years of specialist experience dealing with issues related to property, construction and renovation matters. If you are thinking of undertaking building or refurbishment on your property in Italy, or if you are in a difficult situation concerning liabilities and safety requirements through refurbishment work, we are here to help. Get in touch with us at: info@detulliolawfirm.com

 

You may also beinterested in Off-plan property in Italy – Where do you stand legally?

Benefit of Inventory. Accepting An Italian Inheritance

How to protect your personal assets from debts associated with an Italian inheritance

At De Tullio Law Firm, we understand that when a loved one dies there are many issues that need attention at an extremely difficult time. Having to make funeral arrangements, notifying friends and family and the grieving process.

On top of this, there are also critical legal matters that require consideration.

If your loved one left assets not only at home but also in Italy, estate administration is more complex. As cross border legal specialists in Italy, this is an area in which our legal team can help. Should you wish to discuss your situation with us, please get in touch.

Italian estate inheritance options available to heirs

Inheritance consists of assets (moveable and immovable property) and liabilities (debts).

Italian law stipulates that an heir becomes responsible for settling any debts the decedent may have left.

The acceptance of an inheritance sometimes presents a risk. If the value of assets included in the inheritance is less than liabilities, heirs are responsible for settling debts from their personal finances.

In Italy, inheritance always requires acceptance or refusal. Italian law provides three inheritance options in this regard.

Unconditional acceptance of the inheritance

An heir inherits all the assets subject to succession. The beneficiary assumes personal liability for the decedent’s liabilities, even if debts exceed the value of the assets. An heir therefore becomes liable in a personal capacity (with their own finances) for any portion of the decedent’s debts that the inheritance does not cover.

Refusal of the inheritance

This means an heir completely renounces the succession. In effect, an heir renounces all rights to the inheritance. The statutory arrangement is that the share of inheritance is then subject to a ‘right of representation’. Thus it passes to an heir’s children, and if there are no children, to any other heirs.

Acceptance under the benefit of inventory (accettazione con beneficio di inventario)

This is usually the best option if you are uncertain whether the inheritance comprises debts and other succession charges.

What is the acceptance of inheritance under benefit of inventory?

According to Article 490 of the Italian Civil Code, acceptance under the benefit of inventory is an act by which a person declares the acceptance of inheritance but wants to protect personal assets from becoming entwined with those of the deceased.

Usually, the assets of the heir and that of the deceased are merged into one, so not only does the heir inherit movable and immovable assets, but also any debts and liabilities.

Whoever accepts an inheritance must settle debts, so caution is advised. In order to protect an heir’s personal assets, the acceptance of the succession is subject to a condition, the benefit of inventory. This permits the heir to assess what the inheritance actually comprises before deciding whether or not to accept it.

There is no obligation for an heir to accept the inheritance. Drawing up an inventory of debts and assets allows the heir to make an informed decision about the inheritance: either to accept and pay debts from the assets inherited, or to refuse the inheritance because debts outweigh inherited assets.

Effects of acceptance under benefit of inventory

The first advantage is that the estate of the deceased remains distinct from the estate of the heir. In essence, this means that an heir does not have pay the decedent’s debts for a value greater than that of the inherited assets. In addition, creditors cannot recoup any debts from the heir’s personal assets.

How to accept the inheritance under the benefit of inventory

To accept an inheritance using the benefit of inventory, there are some fundamental requirements. Article 490 of the Italian Civil Code covers the procedure.

Firstly an heir has to file a declaration written in Italian, with a notary or a clerk of court in the locality where the succession procedure is taking place. Secondly, a detailed inventory of all the assets belonging to the inheritance is necessary.

Within a month of filing the above mentioned declaration, the notary or clerk must transcribe it in the relevant land registries. This transcription then permits the heir to pay the creditors and the bequests.

Finally …

If you are in the difficult situation of considering whether to refuse or accept an Italian inheritance, using the option of benefit of inventory may be the way forward for you.

You may also be interested in Inheritance Law and Taxes

Title deed in Italy. Change of Names.

Registering names on a title deed in Italy

The final step of the Italian conveyancing process is signing of the deed of sale. In effect this is a property title deed and transfers ownership of real estate into someone’s name.

This legal procedure demands the presence of a notary public, the real estate vendor(s) and buyer(s) and two witnesses.

The notary reads aloud the entire deed, which is written in Italian. All parties, including the witnesses and the notary public, then approve and sign the title deed.

If one of the parties to the transaction is not fluent in the Italian language, Italian law requires the presence of a qualified professional to translate and interpret the title deed. This could be a translator or a bilingual property lawyer. This legal requirement aims to ensure that all parties fully understand the content and ramifications of the deed. The professional acting as translator must also sign the title deed.

Once the notary has signed-off on the deed, the buyer acquires ownership of the real estate.

Subsequently, the notary is responsible for certain formalities. Because notaries work for the Italian State, registering the deed with the tax authorities is the first step. Next the notary lodges the deed in the Public Registers. This allows any third parties who may have an interest to know about the change of ownership. Lastly, the notary informs the land registry so they can update their records accordingly.

How do you change the name on an Italian property / title deed?

There are many reasons why you may need to change the name on a title deed in Italy. Divorce and death are the most common reasons.

In order to change the name on a title deed, you will require a new notarial deed.

For example, if you acquired a property with a spouse and following a divorce you need to remove one of the names from a real property title deed, you will need a new notarial deed.

Where the divorce decree is from an Italian Court, the transfer of ownership will not involve payment of any real estate transfer tax.

If on the other hand, the divorce decree is issued by a non-Italian Court, you will have to pay real estate transfer tax.

The terms of the new title deed determine applicable tax rates. It will depend whether the real property changed hands without any payment or if there was a financial transaction involved. In the latter case, you will need a new deed of sale.

How do you find out whose name is on a title deed in Italy?

In order to find out whose name appears on a title deed, you will need to conduct mortgage and cadastral searches.

Finally …

For more information and clarification or, if you need to change a name on a title deed or ascertain whose name is on a real property title deed, feel free to get in touch with us. We are here to help.

You may also like to read: Translating legal documents in Property Transactions

Building A House in Italy: A Brief Guide

Purchasing the right plot of land when building a house in Italy is crucial

Self building, or having a house built, in your own country can be daunting enough. However, when it comes to building a house in Italy things can get really tricky.Building a House in Italy: a short step by step guide

If you decide to build a house in Italy, you will be subject to stringent building approvals and regulations.

Building work carried out in breach of approvals or that do not comply with regulations, expose you to criminal charges and prosecution. Court cases in Italy are protracted and costly procedures.

Non-compliances will also impact the future saleability of the property and, in a worst-case scenario may even lead to a demolition order.

You will need to deal with many professionals and legal restrictions. Building a house in Italy requires a deep knowledge of Italian law, technical aspects and working with building companies and contractors.

There can be many pitfalls along the way and we strongly advise you to seek legal advice before you even start looking for a building plot.

Get your team in place

Involve professionals from the get go. This will make the whole procedure easier.

In addition to an architect and builder, engage a lawyer. This will give you more confidence in the building procedure since your team will guide you through what is a very complex project.

What are the steps to building a house in Italy?

Firstly, check before you buy. Can actually build on a specific plot of land and if so what size property can you build? You can ascertain this information from the land registry, certificates of intended use and, by investigating the presence of any restrictions related to zoning and urban planning.

Secondly, get your architect, surveyor, engineer to design the property. This should take into account current legislation regarding energy efficiency and any incentives available.

During this phase, we would recommend you define, in detail, a list of materials and finishes. You should then start getting estimates from construction companies or builders.

Thirdly, you will have to apply for planning and building permits and/or appropriate authorisations. The application needs to go through your local municipality. Depending on the municipality, permission can take several months.

How can a lawyer help with building a house in Italy?

Essentially a lawyer will safeguard you, your project and finances by ensuring that everything complies with Italian legislation.

In the first instance your lawyer can run checks and searches for you.

For example, so as to eliminate the risk of choosing a company that may become bankrupt during your building project, a solvency check on potential building companies is vital.

In order to have genuine benchmarks, your lawyer can request quotations from a number of building companies. Usually, for new construction, there are at least four different types of companies involved, (excavation, construction, electrician, plumber), but for easier management, it is advisable to contract the works to one company that will sub-contract the work. This is important in order to have only one point of contact on-site.

It is mandatory to check the building company you engage is tax compliant. Your lawyer can check DURC (Documento Unico di Regolarità Contributiva). This shows whether the company is in compliance with employees’ social security contributions.

Your lawyer can provide project management services. In order to avoid any conflicts of interest, you should avoid nominating a project manager related to the building company.

It is essential to have a legally drafted building contract. This is critical as it ensures you have all the legal guarantees and protections throughout your build and beyond. Again, your lawyer can manage this for you.

What needs to be in place before building can start?

Building works can only commence once you have nominated a project manager and building company and you have received all the relevant permits and documentation from the Municipal Technical Office.

A Safety and Coordination Plan (Piano di Sicurezza e Coordinamento) must also be in place, pursuant to Legislative decree 81/08.

A Safety Coordinator (Coordinatore della Sicurezza in fase di Esecuzione) must oversee the building phase. All the companies involved in the building phase must comply with the provisions of health and safety regulations. In addition they must prepare their own Operational Safety Plan (Piano Operativo di Sicurezza, POS).

Waste management produced on the construction site is particularly important. All materials must be disposed of in accordance with local regulations.

Finally …

As you can see, building a new house in Italy is not a straightforward process. Relying on our legal expertise and knowledge of Italian building laws and regulations will give you certainty and peace of mind.

Should you need further information concerning the process of building a new house, please feel free to contact De Tullio Law Firm at the following email address: info@detulliolawfirm.com.

 

You may also be interested in Insurance Policy for Off-Plan Properties

Renovating A Property in Italy. A Brief Guide

Before renovating a property in Italy, do your homework

Renovating a property in Italy means making sure all the work meets legal requirements. Otherwise, you run the risk of criminal prosecution.

Renovating a property in Italy - GuideRenovating a property in Italy is a complex process requiring a wide range of competencies. Obtaining legal assistance will make the entire renovation process easier and crucially, ensure that all legal requirements are met in a timely manner.

Legal support can save you money and mitigate the risk of criminal liabilities and prosecution.

Legal due diligence

Before you buy a renovation project in Italy, it is vital to do some in-depth research about the property. This legal due diligence step verifies, amongst other things, the compliance status with municipal planning and land registry documentation.

At De Tullio Law Firm, we offer a complete range of services to assess the legal situation before you purchase a property or before you start renovation work.

Firstly, we can check that the current (de facto) condition and the official (de jure) condition of the property match all the documentation lodged with the cadastre. Secondly we can search for all the planning and building permits lodged with the Municipal Technical Office and check these are in order. Thirdly, we can ascertain from municipal records that the entire property – including any additions and outbuildings, have all the relevant planning consents.

Without the above, you will not be able to obtain authorisation to commence renovation works. Renovating the property will require that you apply for the relevant permits issued by the local municipality.

Buying to renovate

Once you are sure that the property meets legal requirements and structural specifications and if you have decided to proceed with the purchase, having a legal professional on your side will be helpful in negotiating the property price and ensuring the purchase goes smoothly.

Choose a specialist property lawyer with expertise in building law and regulations. Bear in mind that if down the line, you undertake any work that is not legally compliant, you run the risk of prosecution. In Italy this can mean a protracted, costly matter and will obviously require legal services. In the long run, it may be more cost-effective to budget legal services from the outset of your project.

Steps involved in renovating a property in Italy

Design and planning permission

Once you own the property, technical experts – a surveyor and/or an architect – assess its de facto condition and design the renovation work.

Plans must meet provisions of current legislation, with particular regard to energy efficiency and sanitation regulations.

You will also need to respect zoning and planning regulations in the design.

In order to draw up suitable tenders,  you should make a complete list of materials and finishes at the design phase.

Building quotes

Subsequently, you will need to choose a building company to carry out the work.

This step involves submitting the executive project – drawn up by your surveyor or architect – and the above-mentioned specification list of the works to at least three companies. In this way, you have a comparison to help choose the most competitive and suitable offer.

Usually, for refurbishment, there are three types of companies involved (construction, electrician, plumber).

To simplify management of the work, it is advisable to contract only one company, who will then sub-contract the work. It is vital to check that your chosen building company conforms with Italian fiscal requirements, in particular through the DURC (Documento Unico di Regolarità Contributiva), a document proving that the company makes social security contributions on behalf of its employees.

In order to avoid conflicts of interest, it is advisable to nominate a project manager unrelated to the building company.

Building contract

The next key step is to draw up a detailed contract between yourself and the building company. This is an area that requires a thorough understanding of the law. Your building contract guarantees your legal protection during and following the completion of your building work. The contract is of paramount importance, especially if you need to seek legal recourse at some point. You should ensure that your contract is legally binding and specifies the building company’s duties.

Tax incentives

It is also advisable to check what tax deductions and/or funding is available. Even if you have already started renovation work, incentives periodically become available.

Building permits and starting renovations

You will need to officially declare the property owner, project manager and building company and apply for the relevant building permit. Your local municipal technical office is responsible for providing a building permit. When you have received the relevant authorisation, building work can commence.

A Safety and Coordination Plan (Piano di Sicurezza e Coordinamento) must be drawn up pursuant to Legislative decree 81/08, and a Safety Coordinator (Coordinatore della Sicurezza in fase di Esecuzione) must be appointed to supervise the building procedure. The building company must comply with the terms specified in this document as well as draft its own Operational Safety Plan (Piano Operativo di Sicurezza, POS). All waste produced on the construction site must be properly managed and treated in compliance with local disposal laws.

Signing off

Once work is complete, you will need to have everything assessed, inspected and approved. Then the cadastral value of the property needs updating in the land registry and you can apply for a certificate of habitability.

Finally …

Are you considering renovating a property in Italy? Are you experiencing problems with a renovation project in Italy? If you would like support or further information, our legal professionals can help. We can make your project easier by guiding, advising and protecting you through the entire procedure. Reach us at info@detulliolawfirm.com.

 

You may also be interested in Building a House in Italy: a short step by step guide

Usucapione (Adverse Possession)

What is Usucapione?

Usucapione is a legal method of acquiring ownership of an Italian property.

There are two essential elements to  usucapione. Firstly, material possession of the asset, acting as the owner (as opposed to someone who received the right of use from the owner, e.g., by  means of a contract). Secondly, the passage of a specific period of time.

In the context of usucapione, possession should be peaceful. That is to say, possession should not have occurred through violent or clandestine means. Possession should also be continuous and uninterrupted over time. This means that possession should not have been intermittent.

Time is the essential element in usucapione. Italian legislation provides for 20 years for properties where possession is in bad faith and for other rights concerning usufruct, right of use, easements, etc. 10 years if the property is in good faith, that is, with a registered title deed by a party who was not the real property owner;

Uninterrupted possession must occur during the above mentioned periods of time. How does the law define uninterrupted? It means that possession should not be vacant for more than one year. For example, if the owner takes back possession of his asset for more than one year, usucapione is considered interrupted.

According to case law, it is compulsory to provide clear evidence concerning the start of possession. Very often witnesses play a crucial role.

Not all assets are subject to usucapione. State-owned property and/or public assets, for example, cannot be adversely possessed.

A case of usucapione?

For years a house had sat abandoned on the outskirts of a Sicilian village. Over a period of several years, starting in 1969, Giovanni started refurbishing the property. He moved in when he’d finished the renovation. Giovanni tamed the garden. He fenced it, established a vegetable plot and fruit orchard. Giovanni also fenced in some land abutting the property, where he keeps a few goats. Although he has no documents proving his title to the property, throughout the past fifty years, Giovanni has behaved as if owns the property.

Marie Louise is an American citizen who also has an Italian passport. She has presented a claim on the property. She asserts that she inherited the property from her grandfather and that she is therefore the rightful owner.

Is Marie Louise right about her claim? Or, has Giovanni acquired the property through usucapione?

How to organise a legal case based on usucapione:

The first step is to ensure you can evidence your right, specifically to have possessed the property, “uti dominus” (as if you were the owner of the property). Examples could be that you have rented the property, executed building work, etc.

Generally speaking, the role of witnesses is crucial. It is therefore essential to contact individuals who are prepared to give evidence in court.

Obviously, documented evidence is also important (for example, receipts regarding tax payments, invoices concerning building work, etc).

Compulsory mediation

Before starting a court case, it is imperative to apply for a compulsory mediation procedure with a mediation body (Organismo di mediazione) accredited by the Italian Ministry of Foreign Affairs. We recommend that you engage a lawyer to help. The application should indicate the parties involved in the procedure and the property subject to usucapione.

Where the mediation procedure results in a successful outcome, the agreement reached by the parties must authenticated in the presence of a notary public.

In case of a negative outcome from a mediation procedure, it is possible to then start legal proceedings in court.

Taking an usucapione case to court

Back to the above case regarding Marie Louise and Giovanni.

Marie Louise can sue Giovanni in court to reclaim possession and re-establish her full ownership of the property. The success of Marie Louise’s claim will depend on her ability to prove that she acquired the property by valid title and, that the property belonged to her predecessors by valid title prior to her inheriting it. In addition, if Marie Louise can prove that Giovanni’s holding has not been at the property in an uninterrupted manner or that she took proprietary action during Giovanni’s holding and therefore his acquisitive prescription is incomplete, Marie Louise may be able to reclaim possession of the property.

To challenge Marie Louise’s claim, Giovanni should use witnesses to testify that he renovated the house, fenced in the land and has worked the garden in a public, continuous and uninterrupted manner for the past fifty years. In effect he has treated the property as if he were the owner. If during the past fifty years, he has also had access to utilities (e.g., water, electricity) and has paid property taxes, Giovanni should be able to produce receipts to support his usucapione claim.

Finally …

If you own property in Italy, which you have neglected for some time, it is advisable to consult a specialist Italian property attorney to prevent any risks connected with usucapione. You can read more about usucapione or, if you would like to discuss a case, please contact us for a free consultation.

You may also be interested in Usucapione – Safeguard Your Ownership Rights

Making An Italian Will. Information And Template

A Will determines distribution of your assets

Making an Italian Will

By making an Italian Will, you can decide how to divide your estate after your death. In addition, it allows you to be certain that your heirs don’t pay more Inheritance Tax than necessary.

What is an Italian Will?

A Will is a legal document. The Will writer, known as the testator, establishes in written form, how to distribute their estate after death (article 587 of Italian Civil Code).

Anyone over the age of 18, who is not legally incapacitated, can write an Italian Will. Incapacity is defined by Italian Civil Code.

Italian law states that a Will is revocable at any time. Testators’ rights to dispose of their assets is protected until their last breath.

The content of an Italian Will is essentially patrimonial. That is to say, it deals with the distribution of a testator’s inheritable assets. However, the law states that testators can also make dispositions of a non-pecuniary nature in a Will. For example, the recognition of a natural child.

Why is making an Italian Will important?

To understand how Italian inheritance law works, you may like to read our comprehensive guide on this subject.

You should not underestimate the  importance of making an Italian Will.

The laws governing forced heirship are very strict in Italy. Because of this, anyone wishing to derogate from the rules should seek legal advice in order to ensure their plans comply with Italian and European succession rules.

Not only does a Will enable a testator to assign assets to beneficiaries, it can also be useful in preventing conflict among heirs. In certain cases, it can also permit a reduction in inheritance tax payments.

Because it makes life easier for those you leave behind, if you own property in Italy, we would advise that you make an Italian Will.

How do you make an Italian Will?

When making an Italian Will, it must be in Italian. For an Italian Will to be legally valid,  a testator must hand write, sign and date the document.

For straightforward cases, testators can use a very simple format with wording such as this:

I, the undersigned, …………………. (indicate surname, name, place and date of birth, residence) revoke all my previous testamentary dispositions. I dispose of my patrimony at the time of my death as follows.

I appoint as universal heir of all my worldly goods …………. (indicate surname, name and any relationship of kinship. If it is not a relative, you should also indicate place and date of birth).

I give to ………… (indicate surname, name and any relationship, if it is not a relative, it is appropriate to indicate place and date of birth) the following assets: …………………….. (clearly specify the assets).

Date

Signature

Finally …

Even if you think your situation is straightforward, it may not be. If you own property in Italy and elsewhere, this adds a layer of complexity. It will require cross border legal expertise. We therefore recommend that you seek independent legal advice regarding your personal circumstances.

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

If you would like to discuss your estate plan with us or if you are considering making an Italian Will, please get in touch at: info@detulliolawfirm.com

 

You may also be interested in Do beneficiaries have to pay taxes on inheritance?

Legitimate Heirs. Rights of “Forced Heirs” in Italian Inheritance

Italian law provides for legitimate heirs

legitimate heirs in Italian inheritanceAlthough a testator may have expressed wishes in a Will, certain people have a legal right to receive at least a portion of an Italian inheritance. These are all so-called, “legitimate heirs”, or “forced heirs”.

The testator only has one portion of assets to dispose of freely, which varies between a quarter and a half of total assets. This is defined as the, “available quota”.

The remainder of an Italian inheritance is legally designated. This portion goes to a testator’s spouse (or registered partner), children and, in the absence of children, if they are still alive, the testator’s parents.

Legitimate Heirs: what are inheritance quota rights?

If there is only one child, s/he is due at least half of the decedent’s total assets. This becomes a third of assets if the decedent’s spouse or registered partner is still alive. A child would therefore be entitled to inherit a third of the assets.

In the case where there are two or more children, they divide two thirds of the inheritance between them. A surviving spouse or registered partner is entitled to a quarter of the assets, children’s quota decreases to half of the assets. If one or more children pre-decease the testator or renounce an inheritance, their descendants qualify to receive that entitlement.

Where the decedent and surviving spouse or registered partner have no children, the surviving partner is entitled to at least half of the assets.

Parents and other ascendants of the deceased only become legitimate heirs in the absence of descendants. Parents have the right to a third of the inheritance, reduced to a quarter if the decedent’s spouse or registered partner is still alive. The latter is legally entitled to half of the assets.

Regarding property pre-owned by the deceased or owned in common by the spouses or registered partners. The surviving spouse or registered partner has the right to (i) remain in the family house and, (ii) retain all movable assets in the property. In this case, if there are any other co-heirs, there is no requirement to pay property tax on their portion of inheritance. Tax liabilities remain with the spouse or registered partner, even if s/he renounces the inheritance. 

What about the inheritance rights of separated couples?

In cases of a legal separation, the spouse or registered partner loses inheritance rights if a court judgement finds s/he was to blame for the breakdown of the marriage or registered partnership.

Surviving spouses or registered partners who have no court judgement regarding their separation are not legally separated. They therefore have the same inheritance rights as a non-separated spouses and partners. This would also be the case where no assignment of responsibility for the breakdown of the marriage or registered partnership exists.

In other words, the loss of the right to an inheritance relates only to court-issued judgements of separation. The law, in accordance with article 151 of Italian Civil Code, deems a couple to still be in the marriage or registered partnership if their separation was a personal decision and did not go through the courts.

Legitimate heirs and reserved quotas in Italy

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

 

Finally …

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

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

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

 

Italian Property Transaction? Seek Legal Advice

Don’t Leave Your Italian Property Transaction To Chance …

Italian Property Transaction

When buying or selling a property at home, most people wouldn’t dream of doing so without the assistance of a qualified and independent lawyer. Yet in Italy, many buyers and sellers, particularly foreigners, decide not to instruct a lawyer and instead rely on an estate agent to advise them about their Italian property transaction.

Many foreign property buyers find their way to our law practice after encountering serious problems during or after their property transaction. Sadly, some have lost everything.

The reality is that buying an Italian property is an investment. You may not be familiar with the Italian language. Add to this unfamiliar legal, tax and administrative systems and procedures and you are looking at a very complex situation.

Essentially, the need for an experienced, independent lawyer is far greater for your Italian property transaction than when buying property at home.

Italian real estate agents are not qualified to provide legal advice

In many instances, an estate agency will offer to handle all the paperwork for a buyer. With registered and reputable agencies, the intentions are genuine and the conveyancing may well complete satisfactorily. However, estate agents are not trained lawyers. Many have no professional liability or indemnity insurance to cover you in case your property transaction goes wrong or if they miss something crucial.

Real estate agents act on a vendor’s behalf in an Italian property transaction

Also bear in mind that an estate agent is not independent. In fact, they have a potential conflict of interests in offering you advice. Remember that the estate agent is acting for the vendor.

The agent’s primary goal is to sell the property on the seller’s behalf in order to earn their commission. If the sale doesn’t go through because somebody spots an irregularity or a legal problem, the estate agent earns nothing. You, on the other hand, may face a potentially costly and time-consuming ordeal to sort out the issue. You may even expose yourself to prosecution.

Appoint a lawyer in your home country?

As an alternative, some clients look to instruct a lawyer in their home country. However, it is unlikely that the lawyer will have local knowledge of Italy. In addition, it is costly to fly a lawyer to Italy several times in order to conduct searches and checks and to attend completion at a notary’s office.

A lawyer overseas will in all likelihood subcontract the work to a local lawyer in Italy. This may be a lawyer who lacks experience and/ or expertise in cross border and Italian property law.

Because everything needs to go through a number of people, there will inevitably be delays with information and documentation. On top of this, both the foreign and local lawyers will expect to get paid, so in essence, you end up paying twice for the same service.

Finally …

De Tullio Law Firm specialises in Italian and cross border property, inheritance and family legal matters. We are regulated by the Italian Bar Association and a full member of STEP (Society of Trust and Estate Practitioners), the leading worldwide professional body for practitioners in the fields of trusts, estates and related issues.

Our knowledgeable, experienced and multilingual team of professionals manage client cases throughout Italy.

Our clients also benefit from De Tullio Law Firm’s Professional Indemnity Insurance. This is in place should something go wrong during an Italian property transaction due to negligence by our firm. Our clients can however rest assured that in more than 55 years of operations, we have never had to make a claim.

Why leave your property transaction to chance? Get in touch with De Tullio Law Firm. We are here to help make sure your Italian property transaction is a safe and smooth experience.

 

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