What is the legal situation if you own assets in Italy and abroad?
Cross-border inheritance cases have increased during the past decade. In this article we therefore explore one such cross-border inheritance case.
Tom Smith was a UK national in his 60s. He had two children from his first marriage, both children are now adults. On a trip to Italy 20 years ago, Tom met a young Italian woman, Giovanna. A few years later, they got married in Giovanna’s home town – Perugia, in Umbria.
Tom and Giovanna set up home in the countryside, about 30kms from Perugia. They lived in a house on two hectares of land set to orchards and olive groves.
Tom and Giovanna have a daughter. Francesca, now aged 15, was born in Italy and holds dual British and Italian nationality.
Before he met and married Giovanna, Tom had purchased a property in Bath in southwest England. The title is in Tom’s name only and the property is currently valued at about £1 million. During their marriage, Tom and Giovanna purchased a property in Cornwall, now worth about £300 thousand, which they jointly own.
The property in the Umbrian countryside was purchased for €250 thousand in 2007, under the Italian marital “Community of Property” regime.
In his name only, Tom also has a portfolio of investments in the UK. The portfolio is worth about £200 thousand. In addition, Tom has UK bank accounts with a balance of £10 thousand. He and Giovanna have a joint bank account in Italy with a balance of €12 thousand. The family mainly used this for property maintenance, tax and living expenses in Italy.
When Francesca was born in 2002, Tom made a new English will. He revoked his former will at that time. Tom left legacies of £100 thousand to each of his two adult children, with the residue of the estate held in trust with an income to his wife Giovanna for life. On Giovanna’s death, the estate passed to Francesca. He appointed an English solicitor as executor and trustee of the estate.
Tragically, one morning last year, while Tom was working in his olive grove, he suffered a fatal heart attack. Giovanna is now finding it impossible to cope with the house and land in the Italian countryside. She wants to sell the property and purchase an apartment for herself and Francesca in Perugia.
Giovanna thinks Tom had an Italian will that mirrored his English will. However, she has been unable to locate it.
As he is unfamiliar with all the intricacies of Italian law and the Italian inheritance and probate procedure, the English solicitor has contacted us. He has a number questions regarding Tom Smith’s cross-border inheritance case.
Cross-border inheritance Q&A
Is Tom Smith’s English will recognised under Italian law? If so, do the Italian authorities require a UK grant of probate before commencing the administration of the Italian estate?
Assuming Tom Smith’s will is recognised as valid by the UK authorities, it is also recognised under Italian law. A UK grant of probate evidences the recognition of a will by the UK authorities. You may require a certificate of English law as proof of recognition in order to start succession procedures in Italy.
Is it possible Tom also left an Italian Will? What searches could I undertake to ascertain this?
There are three types of will in Italy. Because Giovanna is unable to locate an Italian will, it’s possible that Tom had a will which he deposited with a notary. You can request a search of notarial archives and/or the General Wills Registry in Rome.
What steps, if any, should I take immediately in Italy? Who can take such steps?
Any individual with an interest in the succession can start the relevant succession procedures in Italy. However, in order to facilitate the process, you may wish to obtain support from an Italian inheritance lawyer. The priority is to file the statement of succession with the Italian Inland Revenue (Agenzia delle Entrate).
Can I liaise directly with the bank in Italy, requiring funds to be transferred directly to Giovanna and Francesca?
Yes. However, prior to the completion of succession procedures in Italy, the bank will not release any funds.
As the executor of Tom Smith’s will, can I sell the Italian property directly to a third party? Which law governs the administration of the Italian property?
An executor should dispose of the inheritance assets in compliance with the will. In principle, the administration of an Italian property is subject to Italian law.
Under Italian conflicts rules, which law governs the succession of Italian property?
Italy is a signatory to the EU Succession Regulation. Art. 22 of the EU Succession Regulation provides that a testator may choose, or determine, the law of their nationality as the law to govern the succession as a whole, professio juris (choice of law). Alternatively, with regard to property, succession is subject to Italian law. As far as movable assets are concerned, succession will be regulated by the law of domicile.
Are there any forced heirship rules in Italy? Will they be applicable in this particular case?
Forced heirship rules exists in Italy. They are applicable in this case both to Tom Smith’s direct descendent – his daughter, Francesca and to Giovanna his surviving spouse.
If the Italian property cannot be sold, could the trustee and/or Francesca be one of the registered owners of the property?
They can, provided Tom named them in his will.
Would it have been easier for Tom Smith to make a will under Italian law to dispose of his assets?
Certainly the whole succession procedure would have been easier and more practical if Tom Smith had a will in Italian. In fact, there are difficulties in managing an iternational will in Italy. A will in a foreign language requires a certified translation by a sworn translator. This, in turn, can lead to issues regarding exact interpretation of the testator’s wishes by the Italian authorities. This may lead to a more costly and protracted succession procedure.
Is there any inheritance tax in Italy and, if so, who is liable for the payments?
Yes. Firstly, you need to open a succession procedure. Next, you need to file the statement of succession. Although it is not always the case, the opening of a succession procedure usually coincides with a testator’s death. Thereafter, a filing with the tax authorities should take place – within 12 months of opening the succession procedure. Once the tax authorities receive the statement of succession, they will be able to calculate the amount of inheritance tax due from each heir on their share of the inheritance.
Trying to navigate the Italian and cross-border inheritance procedures without the assistance of an experienced Italian inheritance attorney can be difficult. If you live abroad, this may add a layer of complexity. We would therefore recommend that you seek professional advice and guidance to manage the process sympathetically and efficiently.
At De Tullio Law Firm, we have over 55 years of expertise managing cross border succession and estate planning matters throughout Italy. Our firm is also a full member of STEP, the world’s leading association for trust and estate practitioners.
If you would like to discuss your case, you can reach us here for a free consultation.
In order to understand more about Italian and cross-border inheritance, you might like to read our guide.