Tag Archive for: inheritance law

Make an Italian Will if you own property in Italy

Making an Italian will facilitates the Italian succession process


Do you own property at home and in Italy? If so, we would advise that you make an Italian will. If you are resident in Italy at the time of your death, Italian Inheritance law is applicable to your worldwide assets. Whereas if you were resident outside Italy, Italian inheritance law is applicable to assets in Italy. Either way, Italian law governs your Italian property.

Making an Italian will therefore facilitate the way forward for those you leave behind. It reduces translation costs and prevents potentially costly disputes and misinterpretations regarding your wishes. In addition, an Italian will also creates tax and administration efficiencies.

Isn’t making an Italian Will expensive? 

On the contrary, the cost of making an Italian Will is not excessive. It is a worthwhile expense to keep your affairs in order and save stress, time and expense after your death. 

Can you make a DIY will in Italy?

It is possible to make an Italian DIY will. In a previous article, we have provided a simple template for this purpose.

However, if your circumstances are even slightly complex, you could be causing more problems than you solve. If you own assets in Italy and elsewhere, this is a more complex cross-border situation. If you make your own will, without legal assistance, it can lead to mistakes or a lack of clarity. You may even run the risk of your will being invalid.

Seeking legal assistance when making an Italian will is advisable 

If you have a number of beneficiaries, if you own assets in Italy and elsewhere, if you have residential or business connections in Italy, we would always counsel taking legal advice from a specialist Italian inheritance lawyer.

In Italy, couple cannot have a joint will. Each spouse or partner needs their own separate will. Therefore, you should seek advice if you live with someone, if you are married or in a civil partnership. Likewise you should seek advice if you have children from a previous relationship or step-children. The latter may not automatically be beneficiaries of your estate.

Wills, estate-planning and inheritance are serious matters. They touch many lives in many ways. If you die intestate – without a will, you have no say in what happens to your estate. Instead, the division of your estate will be determined by the law of the country (or countries) where your assets are situated.

In Italy, succession law is based on the principle of ‘Unity of Inheritance’. This principle differs substantially from common law. Essentially, you may find that Italian assets you own are not inherited by those who you wished and, the whole estate may not be passed on in the most tax-efficient way.

You should review your will periodically

Estate planning should be an ongoing process, not a one-time event. You should review and update your will as your family and circumstances change. This would include when you make an international investment.

Once you have written your will, you should review it regularly to make sure it reflects your wishes, especially if your life changes. 

Finally …

People put off making a will because they think they do not own enough, they are not old enough, it will be costly or confusing, they will have plenty of time to do it later, they do not know where to begin or who can help them, or they just do not want to think about it.

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

Please contact us if you are buying or already own an Italian property and have any questions about making or reviewing a will.

 

You may also like Estate Planning And Tax. Buying An Italian Property.

Italian inheritance law

What are the principles of Italian inheritance law?

Law n.218, 31st of May 1995 regulates the field of Italian inheritance law in the framework of international private law.

The national law of the deceased party at the time of death determines succession rules.

The Italian legislator adopted the principle of “unity of inheritance”. This principle differs substantially from the one adopted in other countries. Notably common law countries. Unity of inheritance makes a distinction between between movable and immovable assets.

If the deceased was resident in Italy at the time of death, Italian Inheritance law applies to the deceased’s worldwide assets.

Whereas if the deceased lived outside Italy, Italian inheritance law is only applicable to assets in Italy.

Movable assets

The law of the last domicile or last citizenship of the deceased party is applicable to movable assets.

Immovable assets

The national law of the location of immovable assets is applicable. This is the so called, “lex rei sitae” (law of the country where the property is located). One of the most important consequences is that, if the deceased’s estate includes properties located in different states, the succession of each property is subject to the law of the country where the property is located.

The inheritance law that regulates  succession is the national law of the deceased at the time of death

Italian conflict of laws considers the possibility that the national law of a deceased foreign national might defer to the law of another country. Such deferment is however, only effective if the law of the third State accepts the deferment. For example, if an English citizen owned a property in Italy,  succession will be regulated by the law of England and Wales. However, according to  the conflict laws of England and Wales, the law applicable to overseas property is“lex rei sitae”. In other words, Italian inheritance law is applicable to the Italian property.

The testator has the right to submit his succession to the law of the country where he resides. Such choice has to be formally expressed in a will and shall not be prejudicial to the rights that the Italian law provides for, “legittimari” or forced heirs. These are close members of the family who have the right to receive a fixed part of the estate. Whether the deceased had a will or died intestate, legally, the deceased’s spouse or registered partner and children for example must receive a portion of the estate.

If you own property in Italy, it is advisable to make an Italian will

It is highly advisable to make an Italian will in order to limit the consequences of  “testamentary succession”. This also applies where the deceased has not left a will, in such case the Italian law determines which relatives of the deceased have a right to succeed (primarily the spouse, the legitimate and natural children, and the ascendants).

Where there are no heirs, Italian inheritance law assigns Italian assets to the Italian State.

EU Regulation 650/2012 simplifies cross-border inheritance matters

Also known as Brussels IV, EU Regulation 650/2012 came in to effect on 17th August, 2015. The regulation harmonises succession rules in participating EU States, which is all of them except Ireland and Denmark. In an effort to simplify cross-border succession, the EU adopted a single, unified connecting factor – habitual residence.

Brussels IV provides an opportunity to elect a country law to apply to your succession

Brussels IV allows individuals to make an election for the country of their nationality to apply to the devolution of their entire estate. Or, where individuals have multiple nationalities, a testator may choose to apply one of these nationalities.

Testators do however need to take action. If you own a property in Italy, you can nominate a country law in your will. This is known as a Choice of Law codicil.

If you are in the process of making or reviewing your will, it is therefore worth considering including a properly drafted Choice of Law codicil to apply to cross-border inheritance. You need to carefully consider matters such as foreign matrimonial regimes, usufruct, tax consequences, joint ownership structures and other foreign proprietary rights with respect to your estate.

Another benefit of Brussels IV is the European Certificate of Succession (ECS). This allows heirs, legatees, executors of wills and administrators of the estate to prove their status. The certificate is then valid in all other EU Member States.

Brussels IV also provides potential benefits for non-EU nationals

Interestingly, there are also potential benefits for non-EU nationals resident in an EU Member State. Again, you need to make an appropriate Choice of Law in your will. For example, US nationals could nominate US law to apply to the succession of their property in Italy. An Australian with property in Spain could nominate Australian law. A Canadian citizen with property in France could elect Canadian law, and so on.

Finally …

Cross-border inheritance law is a complex matter. We recommend you seek independent legal advice regarding your personal situation.

At De Tullio Law Firm, we have over 55 years of experience 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. 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. You may also like to watch our info videos on the subject of Italian inheritance law.

 

Do You Have A Dormant Account in Italy?

How does Italian law define dormant accounts?

According to Italian law, a dormant account contains a sum over €100 that has not been moved by the owner for a period of 10 years.

A dormant account may be with a bank or other financial institution and can be an account or financial instrument. This includes any inactive deposits in savings account books, bank accounts, postal accounts, shares, bonds and government securities.

Is it true that funds in a dormant account can be transferred into an Italian government fund? 

Rules establish that financial institutions can terminate contractual relationships dormant for 10 years or more with sums of at least €100. These dormant funds transfer to the Italian Ministry of Economy and Finance. Article 1 paragraph 343 Law 2005 n. 266 designates these funds for social purposes. 

However, before any sum devolves into the Italian Ministry of Economy and Finance fund, the owners of a dormant account must receive notification from the financial institution.

Thereafter, owners have a period of 180 days to reactivate the dormant account. Either owners can make a transaction or, they can notify the financial institution of their wish to continue the contractual relationship. 

Even if sums have transferred to the government fund, the account owner may still claim a refund. Owners of dormant accounts have 10 years to claim a refund.

Who is entitled to a refund? 

Provided that the ten year statute of limitation has not elapsed, owners of accounts or their assignees can claim a refund. The ten year statute of limitation starts from the date the financial institution transferred sums to the government fund, or the issuance of a banker’s draft.

How do you get a refund?

First, you will have to prove you are the owner or beneficiary of a dormant account. In order to do this you will need to visit the Consap website. This system will ascertain if a dormant account exists according to the data you provide and permit you to download a refund form, which you will need to fill.

Where you have inherited a dormant account, you will need to provide a self-certification document, which will be verified by Consap.

Owners of dormant accounts should check the Consap website for details or they can send their application to:

Consap S.p.A.

Rif. Rapporti dormienti

Via Yser, 14

I-00198 Roma

or via e-mail to rapportidormienti@consap.it

Claimants will need to supply proof of their right to a refund. The type of documents will depend on personal circumstances. These may include:

– Copy of identity card or other ID of the applicant entitled to refund.

– Copy of fiscal code of the applicant entitled to refund.

– The account owner’s death certificate.

– Copy of savings passbook or of a bank statement.

– Statement attesting heir’s entitlement.

– Statement of termination of contractual relationship by the financial institution.

– Notification of transfer to the government fund.

After verifying entitlement to a refund, Consap will transfer payment through methods such as a bank transfer or a banker’s draft.

What if you have moved or haven’t received bank notification about a dormant account?

First, you should contact the financial institution you think may hold an account to ascertain if you are the owner of a dormant account. Secondly, you should notify the financial institution regarding any change of residence. In effect, notification of a change of residence is sufficient to reactivate a dormant account.

I’ve received a letter from the bank but, the dormant account owner has passed away. 

In this case, it is important to remember that not only the owner of a dormant account can reactivate it. An executor can also do this. If there is no executor, beneficiaries should notify the financial institution of their entitlement to succeed to the deceased’s account. Beneficiaries should present the owner’s death certificate with Italian probate and succession documents.

What if there is more than one dormant account at the same bank?

Owners don’t have to reactivate all their dormant accounts. Reactivating one account is sufficient. For example, if there is a dormant current account and a dormant deposit account, reactivating one will make both active.

Finally …

For more in-depth information about Italian succession, you might find our Succession Guide useful.

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

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

Accepting Or Renouncing Italian Inheritance

Inheriting an Italian estate

Under Italian inheritance law, beneficiaries not only inherit a share of the deceased’s estate, they are also liable for any debts. If debts exceed the value of assets, heirs may choose to waive their inheritance. In this article, we discuss renouncing or accepting Italian inheritance.

How does accepting an Italian inheritance work?

The beneficiary can accept to be an heir expressly or tacitly. In either case, the beneficiary must accept within 10 years from the opening of the succession process. 

When the beneficiary declares to accept the status of heir they need a notarial or a private deed. 

When someone acts in such a way that the acceptance can be implied or inferred it is referred to as Tacit acceptance

The acceptance can also be reserved. This way, the successor reserves the right to accept or renounce an Italian inheritance until such times as they are able to ascertain whether debts or liabilities on the assets exceed the value of the property the beneficiary is inheriting. In this way, the heir is able to discharge themselves from paying any outstanding debts by renouncing an inheritance in favour of creditors and legatees.

Usually, an heir renounces an inheritance if the decedent’s debts exceed the value of the assets. The heir must pay the decedent’s debts up to the value of the property they inherit.

Renouncing an Italian inheritance

For the beneficiary to renounce an Italian inheritance they must make a  statement in front of a Notary Public or at the chancery of the court where they opened the succession procedure (“volontaria giurisdizione” section). The Notary Public or the court clerk then record a renouncement.  The beneficiary must renounce within 10 years of the opening of an Italian succession procedure.

Finally …

At De Tullio Law Firm, we have published a Guide to Italian Inheritance, which we hope you will find useful. 

If you are a beneficiary to an Italian inheritance, it is always advisable to consult a competent independent professional. A lawyer can provide information about debts and charges on inherited assets. A lawyer will also provide advice regarding renouncing or accepting Italian inheritance. This way you can make an informed decision about how to proceed. 

Each case is different so, if you would like to contact us for a free consultation about your Italian inheritance matter, please get in touch.

Testamentary Succession in Italy: Italian Inheritance Law

Close family members take precedence in Italian inheritance

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

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

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

Testamentary succession and foreign wills

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

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

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

The exclusion of certain heirs from testamentary succession in Italy

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

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

Forced heirs, reserved and available quotas in Italy

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

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


Applicable laws

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

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

Finally …

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

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

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

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

Italian Assets. Preparing for The Future


Thinking long term about Italian assets

Do you, or your family, own Italian assets? Are you thinking of buying a property in Italy? If so, it is advisable to research and prepare for the future of those Italian assets. You may like to watch our short video on this subject.

Inheritance and probate laws vary from country to country. Italian assets will not be subject to the same laws as your assets at home. If the deceased was resident in Italy at the time of death, Italian Inheritance law applies to the deceased’s worldwide assets. Whereas if the deceased lived outside Italy, Italian inheritance law is only applicable to assets in Italy.

The succession process following the death of a loved one can become complicated and stressful. When you need to consider assets abroad it can also become frustrating and costly.

EU Regulations

In 2015 a new EU regulation came into force. Known as Brussels IV, this regulation aims to facilitate cross border succession. 

Brussels IV enables a testator with assets abroad to choose which country’s law will govern their will. In addition, it introduced a European Certificate of Succession (ECS). Heirs, legatees, executors of wills and administrators of the estate can use an ECS to prove their status and exercise their rights or powers in other EU Member States.

Brussels IV also offers potential benefits for non-EU nationals. Again appropriate action needs to be taken in the form of a choice of law clause in a will. For example, US nationals could nominate US law to apply to the succession of their property in Italy. An Australian with property in Spain could nominate Australian law. A Canadian citizen with property in France could elect Canadian law, and so on.

The country where the deceased was habitually resident determines the way Italian assets are handled

With or without a will, applicable laws and processes vary. For instance, in Italy, a public notary must authenticate a will before probate can commence.

If the testator did not draft an Italian will, a sworn translation of international wills is necessary. Because the testator is no longer around, a translation of a will can create issues and misunderstandings during the probate process. Having separate wills in the countries where you have assets is therefore the best method to prevent problems after your death.

If no will exists, the situation can become very complex for heirs. It is advisable to enlist the help of a specialist lawyer in Italy to manage the succession of Italian assets. If you would like more detailed information about the Italian succession process, you find our Guide to Italian Inheritance helpful.

If you own Italian assets or, you are a beneficiary of an Italian inheritance, it is always advisable to seek legal advice. A lawyer will be in a position to provide useful information about tax liabilities on Italian assets. In addition, a lawyer will also be able to provide information about the rights and responsibilities of an heir. An experienced legal professional will be able to provide advice based on a comprehensive inventory of the assets in question. This will allow you to make an informed decision on how best to proceed.

Finally …

If you own Italian assets don’t put off estate planning because they think you do not own enough, you are not old enough, it will be costly or confusing, you will have plenty of time to do it later, you do not know where to begin or who can help you, or you just do not want to think about it.

Estate planning should be an ongoing process, not a one-time event. You should review and update your plan as your family and circumstances change. This would include when you make an international investment such as a property purchase in Italy.

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

Please contact us if you have any cross border inheritance questions or if would like to discuss your situation.

Italian Will. Why Is It Worth Drafting An Italian Will?

Why is it worthwhile making an Italian will?

If you own property in Italy, having an Italian will can prevent all sorts of difficulties for heirs when transferring ownership of an Italian property.

In Italy, the disposal of an estate occurs in compliance with the decisions of the testator as set out in an will. Or, where the deceased was intestate, in accordance with inheritance law.

in Italy, the law requires that a public notary authenticate a will before probate can begin.

Although, generally speaking, Italy recognises the validity of international wills, they can raise a number of difficulties. As a matter of fact, a notary cannot publish or legalise documents in a foreign language until a court-sworn translator has translated them into Italian. This entails additional cost. It can also lead to misinterpretations of the testator’s wishes regarding disposal of an estate. Sorting out any misunderstandings may end up being another costly and lengthy matter.

It is also worth bearing in mind that having an Italian will can speed up  administrative procedures. For example, with banks. In Italy, accounts and deposits of the deceased are frozen following an account holder’s death. The procedure to access funds can be a difficult and protracted process. Heirs will have to pay certain expenses from their own pockets in the meantime.

In summary. The main advantages to making an Italian will are threefold

1. Reduces the risk of conflict among heirs.

2. Creates possible inheritance tax reductions for heirs.

3. Makes the decedent’s wishes clear to Italian authorities.

A competent legal advisor can help you draft a will that complies with EU Succession Regulations and Italian law. This limits the effects of legal succession in Italy and ensures that the estate is disposed of according to the testator’s wishes, without violating EU and Italian succession regulations.

Finally …

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 succession and inheritance in Italy, 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. We are a full member of STEP, the world’s leading association for trust and estate practitioners.

 

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

Wills. Do You Have A Valid Will That Covers All Your Assets?

Are your affairs in order? Wills are important – especially if you own assets in more than one jurisdiction

The independent professional body for solicitors in England and Wales has warned that the consequences of dying without a valid will can be dire for those left behind. The research revealed that 73 per cent of 16-54 year olds don’t have wills. Whereas 64 per cent of people over the age of 55 have made their final wishes clear in a will.

The research also found that men are more likely to have a will and keep it updated than women.

Twenty-three per cent of respondents wrongly believed that without a will, their possessions would automatically go to their family.

Dying intestate not only means your final wishes will probably go unheeded, but the financial and emotional mess is left for your loved ones to sort out. This need not be your final legacy.

Owning property in Italy adds to the complexity for heirs if you die intestate

If the deceased was resident in Italy at the time of death, Italian Inheritance law applies to the deceased’s worldwide assets.

If the deceased lived outside Italy, Italian inheritance law is only applicable to assets in Italy.

This means that foreign nationals with a second home in Italy are subject to international succession procedures.

Generally speaking, Italy recognises the validity of international wills. However, a will in a foreign language needs to be translated by a sworn translator before a notary can register and publish it. This involves cost, takes time and may lead to misinterpretation.

It is therefore advisable for non-Italian nationals who own assets in Italy to draft an Italian will to cover those assets.

Why should you have an Italian will for your assets in Italy?

Firstly, having an Italian will minimises misunderstandings and/or conflicts amongst heirs. Secondly, it facilitates legislative, linguistic and jurisdictional matters with the Italian authorities. Thirdly, having an Italian will can reduce estate tax and lastly, it simplifies the whole inheritance procedure.

Making a will is usually a relatively simple process but we urge people to use a qualified, insured solicitor because he or she will be able to spot cross-border nuances that could lead to trouble later on if not properly addressed.

You need to list all the assets that you would like to include in your Italian will . For example, Italian property, vehicles you keep in Italy, bank accounts and so on.

Estate planning should be an ongoing process, not a one-time event. You should review and update your will as your family and circumstances change. This would include when you make an international investment such as buying property in Italy.

EU Succession Regulations: choice of law in wills

EU Law 650/2012, also known as the Brussels IV Regulation came into effect on 17thAugust 2015. Brussels IV contains a provision for individuals to make an election in their wills for the country of their nationality, or where individuals have multiple nationalities any one of their nationalities, to apply to the devolution of their estate.

Interestingly, there are also potential benefits for non-EU nationals. However, again, appropriate action in the form of a choice of law clause in a will is necessary.
Nominating a country law needs careful consideration. You should take into account matters such as foreign matrimonial regimes, usufruct, tax consequences, joint ownership structures and other foreign proprietary rights with respect to your estate.

Finally …

Because each case is different, you should seek professional support and advice relating to wills.

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

Please contact us if you have any questions about making an Italian will or if would like to discuss your situation.

You may also be interested in How to write an Italian Will.

To find out more about Italian inheritance, you might find our Guide to Italian Inheritance helpful.