Tag Archive for: Italian Probate Solicitor

Cross-Border Inheritance in Italy. A Case Study

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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.

Cross-border investments

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.

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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.

Wills

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.

Finally …

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.

Make an Italian Will if you own property in Italy

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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. 

Get Your FREE Guide to Planning Your Inheritance in Italy

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

Download now

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.

Do You Have A Dormant Account in Italy?

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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.

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

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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.

Get Your FREE Guide to Planning Your Inheritance in Italy

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

Download now

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.