Tag Archive for: Law

What Is An Apostille?

How can you ensure official documents are recognised abroad?

What Is An Apostille?

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

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

What is an apostille?

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

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

The information in an apostille follows a prescribed format

1. Country of issue

2. Who has signed the document

3. The capacity in which the person signed the document

4. Details of any seal on the document

5. Place of issue

6. Date of issue

7. Issuing authority

8. Apostille Certificate number

9. Stamp of issuing authority

10. Signature of representative of issuing authority

What type of documents require an apostille for use abroad?

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

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

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

Where can you obtain an apostille?

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

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

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

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

Finally …

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

For over 55 years, De Tullio Law Firm has been providing international clients with independent legal advice throughout Italy. We are specialists in cross border property, inheritance and family law.

 

You may also be interested in Power of Attorney

 

 

 

 

 

The Italian Property Market And COVID. What Is The Outlook?

Three main impacts of COVID on the Italian property market but the outlook is optimistic

The Italian Property Market And COVID. What Is The Outlook?

The Italian property market has taken a hit from the COVID health and economic crisis.

Wide-ranging central bank and government policies and stimulus packages are supporting the economy. As emergency restrictions ease, the outlook is optimistic.

The impact of COVID-19 on the Italian residential property market is threefold. Firstly, it creates a natural tendency to worry, making all but the most committed buyers more cautious in the short term. Secondly, on a practical front, travel restrictions have impinged on buyers’ and sellers’ ability to transact, as restrictions limit people’s ability to go about business as usual. Thirdly, the situation generates economic effects which impact the traditional drivers of affordability.

Prior to the COVID pandemic, Italy was experiencing a healthy upturn in its economy

The residential real estate sector particularly in the north of the country was showing a rise in demand for properties and residential construction was increasing.

The uncertainty surrounding the health situation and its duration have seen many would-be investors put their plans on hold. Data for online property listings show a fall in the number of Italian properties on the market. In addition, searches by potential buyers has decreased sharply.

Essentially, the impact of the pandemic on the economy and on property markets extends worldwide. It is not restricted to Italy. Provided that the situation continues to improve, we will likely see a negative effect in the short and medium-term on the real estate market in Italy. However, we expect to see that bounce back as vaccination continues apace and economic recovery gathers momentum.

The Italian luxury real estate sector reports decreased activity but it is far from paralysed

Initial information shows that luxury real estate is weathering the storm. Although they have slowed, transactions are continuing. It is too early to tell how the situation will evolve economically. However, it seems likely that investors will seek to protect their assets by focusing on safe securities such as luxury real estate. The perceived safe-haven of bricks-and-mortar investments in times of uncertainty helps to underpin values of high-end properties.

Experience from crises such as the recession in 2012, shows that once the most critical period passed, the Italian real estate sector gradually recovered.

Volatility in financial markets and low-interest rates continues. This means the real estate sector could again become a strong investment opportunity as we emerge from the COVID pandemic.

Italian property prices may fall before they rise

There is a general expectation that there will be a fall in property prices for a while. This would make Italy a buyers’ market. Thereafter, in the medium term, prices should increase to previous levels. This means sellers will need to be pragmatic on pricing in the short term, as demand becomes more dependent on needs-based and opportunistic buyers.

Having come through a global financial crisis in 2008, governments and central banks have a better understanding how to act in the face of uncertainty. Since then, they have moved quickly to implement measures to combat economic downturns. The approach of the European Central Bank’s (ECB) and the Bank of Italy’s monetary policy suggests that the low-interest-rate environment is likely to continue.

The Italian government has introduced stimulus packages to support property investments

During the pandemic, the Italian government quickly activated its wide-ranging fiscal easing measures in its, “Cura Italia” decree.

The government later announced a further stimulus package in its “Rilancia Italia” decree. Measures include property-related subsidies and tax benefits to support relaunch and investment in the Italian housing and construction sectors.

The combination of the central bank and government policies should support the economy through the current recession and what could otherwise have been a much stronger blow to economic growth. Furthermore, since the 2008 crisis, obtaining mortgage financing in Italy has become easier and this looks set to continue.

The pandemic has driven new ways of working

Many real estate agents and legal professionals took advantage of the pandemic lockdowns to plan how they will manage business in the future.

As restrictions lift, professionals have turned to technological innovation to serve clients. For example the use of using video calls. This could become the new normal.

At De Tullio Law Firm we have seen an increase in clients using our Power of Attorney services. This allows us to organise clients’ property sales and purchases remotely as well as manage many other property-related matters on our clients’ behalf.

Finally …

If you are thinking of investing in Italian property and would like to talk to us about any aspects mentioned in this article, please get in touch.

We are aware that the pandemic has left the signing of many Italian residential property transactions in the air. Many are worried that they may be in breach of contract. This is particularly relevant if there is no specific reference to a pandemic as a force majeure in their contracts. If you need a legal strategy session to discuss your situation, we are here for you.

You may like to watch our useful info videos about buying property in Italy.

Italian Law of Filiation: A Family Law Case Study

Italian law of filiation: the legal rights of children born in and out of wedlock

De Tullio Law Firm provided legal expertise regarding the Italian law of filiation at the Supreme Court of Western Australia.

The parties involved in the case about paternity and inheritance rights emigrated to Australia from Italy in the 1960s. Before ruling on the case, the court needed to understand the Italian law of filiation.

Case Background

In this case study, although we have disguised names and circumstances, we outline the main aspects of the Italian law of filiation that The Supreme Court of Western Australia took into consideration when assessing whether or not Giovanna Rossi, the plaintiff, was a legitimate child of the late Giuseppe Rossi and was therefore entitled to claim a share of her father’s inheritance.

The plaintiff

The plaintiff, Giovanna, issued proceedings in the Supreme Court of Western Australia regarding inheritance of her father’s estate. Following his divorce from Giovanna’s mother, Mr. Rossi re-married and had other children.

Giovanna was born in 1950. Her father and mother were not married at the time. They did however get married a couple of years after Giovanna’s birth.

In Italy, at the time of Giovanna’s birth, it was illegal for fathers to recognise any children born out of wedlock. Giovanna’s birth certificate therefore gives her mother’s maiden name, Bianchi.

However, Giovanna’s birth certificate contains a note stipulating that Giovanna is the legitimate daughter of Mr. Giuseppe Rossi. The birth certificate annotation follows the marriage of Mr. Giuseppe Rossi and Ms. Sofia Bianchi in 1953.

The defendants

The defendants in this case are Giovanna’s half-siblings. They are the children from Mr. Giuseppe Rossi’s second marriage. The defendants dispute Giovanna’s legal rights as an heir and beneficiary to Mr. Rossi’s estate because Giovanna was an “illegitimate” child. They maintain that the subsequent marriage between Mr. Rossi and Ms. Bianchi did not automatically give Giovanna the status of a legitimate child.

What rights does the Italian law of filiation provide?

Firstly, the Italian law of filiation has abolished the old distinction between children born in and out of wedlock.

Constitutional law has driven important changes to legislation regarding filiation with the aim of guaranteeing equality. The consequence of this legislative process has been to stipulate a single status for all children.

Reform of Italian filiation law

Filiation law reform, Riforma della filiazione, modified the Italian Civil Code – in particular, Italian Law no. 219 of 10 December 2012.  This law states that illegitimate children – since reforms in 1975 to Italian family law, known as, “natural children” – must not be subject to any discrimination because of the circumstances of their birth.

All children are equal in the eyes of the Italian law

Both legitimate and natural children therefore have the same status: figlio. All children have equal rights and parents have a responsibility toward their offspring. A child has the right to receive care, education, assistance in case of need and a share of any inheritance.

In other words, the Italian Civil Code, as well as other Italian legislation referring to the relationships between parent and child, only permits the use of the word “child” (figlio/figlia). There is no longer any distinction such as, il/legitimate, natural or adopted.

The provision of a uniform status of filiation means that all children have the same rights to receive care, education, assistance in case of need and a share of any inheritance and parents are responsible for providing these rights. In addition, the express intention of Law 219 of 2012 extends parental responsibilities to parents’ relatives.

2012 filiation reforms are retroactive

The Filiation Reform (Law 201/2012) is applicable to all people, not only those born after a certain date. This means that the abolition of the distinction between legitimate and natural/illegitimate children is retroactive. In other words, it is applicable to parent-child relationships prior to the Law 219/2012 entering into force on 1st January 2013.

A major effect of the abolition of the distinction between natural children and legitimate children is that natural children have gained an equal right to succeed to their parents. They are entitled not only to inherit a share of their “natural” parents’ estate but also to inherit from other relatives of their parents.

How was Italian law different before reforms?

Prior to reforms, there was a huge difference between the status of legitimate and illegitimate children in Italy. Illegitimate children had none of the legal rights afforded to legitimate children.

When Giovanna was born in the 1950s, there were only two ways to legitimate children born out of wedlock and give them the status of figlio. Either the parents could marry after the birth or, the father could make a formal  statement to a notary, declaring that he was the father of the child.

Legittimato quale figlio

Giovanna’s birth certificate contains the phrase “legittimata quale figlia”. This means that following the marriage of her natural parents, Giovanna acquired the status of child. She went from the condition of being illegitimate to a condition where she was recognised as having the status of a legitimate child with all the accompanying rights of being a child.

This was in accordance with applicable Civil Code and legislation in force at that time. Also, as previously mentioned, following reforms to the Italian law of filiation, there is no longer any distinction in Italy between children born in or out of wedlock.

Case outcome

According to the Italian Law, Giovanna Rossi does have the status of a legitimate child of Mr. Giuseppe Rossi, both under current applicable Italian law, as well as under legislation applicable at the time of Mr. Rossi’s marriage to Ms. Bianchi.

The event of a marriage between her natural parents gave Giovanna the status of child and, legitimated her as a child of Giuseppe Rossi and Sofia Bianchi in accordance with legislation in force since February 1955.

The Italian Family Law reform of 2012 abolished any distinction between legitimate children and natural/illegitimate children.

The Supreme Court of Western Australia therefore judged that Giovanna was indeed the late Mr. Rossi’s legitimate child and, as such, was entitled to receive a portion of his estate as her inheritance.

Finally …

At De Tullio Law Firm we provide legal advice and support in all fields of Italian law. Our particular specialties are Italian and cross border property, inheritance and family matters. If we can be of assistance, please get in touch.

You may also be interested in Partition of Property among Family Members.
You may also like to watch our info videos on the subject of Italian inheritance law.

Budget Law 2020 – Imposta Municipale Unica (IMU)

Budget Law 2020 merges former Italian property taxes to create a new IMU

Italy’s 2020 Budget Law (art. 95) has seen the merger of former property tax IMU (Imposta Municipale Propria) and the municipal service tax  TASI (Tributo Servizi Indivisibili) to create a new IMU (Imposta Municipale Unica) tax.

However, tax payments for garbage collection and disposal, known as TARI (Tassa Rifiuti), remain separate.

By switching to a new version of IMU, the Italian government aims to afford more autonomy to local municipalities (comune) in setting their IMU rates.

In addition, the government is looking to shore up tax evasion. Annual differences between expected property tax revenue and what actually lands in the state coffers runs at about EUR 5 billion.

The 2020 Budget Law also allows for reduced penalties if property owners the opportunity to make voluntary corrections to remedy delays or omissions for past IMU.  This opportunity also extends to non-Italian nationals, who may not be aware that they have Italian tax liabilities and payment deadlines.

Overall, the new version of IMU facilitates the application of what was previously a cumbersome system. Moreover, from 2021, the government has started making pre-filled tax return forms available to taxpayers.

Budget Law 2020: Who pays the new IMU?

Because IMU is a tax on second homes, principal residences are exempt – unless they are luxury properties categorised as A1, A8 or A9 in the land registry.

For legal purposes a principal residence is the property in which the owner and/or members of the family habitually live and have their registered residence. If however, members of the same family have their habitual residence and registered residence in more than one property located in the same municipality, the new IMU payment exemption will only apply to one of those properties.

Property owners, or those with rights to use the property pay IMU. There are some exceptions to this and if you need any advice or guidance related to the new IMU, we are here to help.

Budget Law 2020: How is the new IMU calculated?

IMU is a municipal tax. Although rates are capped, each local municipality sets its own rates on an annual basis.

In order to calculate your IMU payments, you need to consult property records to ascertain its tax value category. Additionally, you will also need to know the tax value of any outbuildings on your property. Check the property records at your municipal land registry or, in some municipalities, you can retrieve property information online.

Depending on the land registry category, the following coefficient multipliers apply to a revalued taxable annuity of 5%:

Land Registry Category Coefficient
Group A (excluding A/10) and cadastral categories C/2, C/6 and C/7 160
Group E and cadastral categories C/3, C/4 and C/5 140
Group D5 80
Group A/10 80
Group D, except buildings in cadastral category D/5 65
Group C/1 55

To demonstrate how to calculate the new IMU, let’s take a practical example:

A second home in category A/3 with a property tax value of €600:

Property tax value €600 + 5% revalued annuity = €630

€630 x 160 (coefficient for category A/3) = €100,800

€100,800 divided by 1000 by 10.6 = €1068.48 (we applied an IMU rate of 10.6 set by the municipality)

€1068.48 is thus the new IMU amount payable in two equal instalments.

You may be able to benefit from a 50% IMU reduction for buildings of historic or cultural interest, buildings registered as uninhabitable and/or uninhabitable and unused. Likewise a reduction is available for properties on loan between parents and children, so long as they are used as a principal residence.

When is the new IMU payable?

In the same way as the old system, the new IMU tax is payable in two instalments. Payment deadlines are mid June and mid December every year. In other words, each June, taxpayers must pay half of the annual total of IMU due, applying the rate and making any applicable deductions from the previous year.

The balance of the new IMU tax is due each December, calculated on the rates approved by local municipalities, which issue their local rates by the end of October each year.

How do you pay the new IMU?

There are several options for payments of the new IMU tax. Either you can fill in an F24 form online at your Italian bank’s website or you can print off a filled-in F24 form and pay at a post office or bank counter. On the other hand, you can use a payment slip at the counter of an Italian post office or use the Italian post office website.

Although they are not yet widespread,  local municipalities have started introducing their own public administration digital payment platforms.

Finally …

With over 55 years experience of cross border and Italian property transactions, we understand that Italian property-related tax matters can be confusing. If you would therefore like further clarifications or want to discuss your situation, please contact us for a free consultation. We are here to help. 


You may also like to read about tax measures in the 2020 Italian Budget Law.

EU Property Regime Rules. Marriages & Partnerships

EU property regime rules for cross border marriages and registered partnerships

According to the European Commission, there are about 16 million couples in the EU living in a “cross border situation”. These international couples are citizens and/or, own properties in different EU Member States. Until 2019, no EU property regime rules existed for cross border marriages and registered partnerships.

On 23rd June 2016, Members of the European Parliament approved two regulations. These regulations determine homogeneous rules applicable to property regimes in cross border situations. Council Regulation (EU 2016/1103) determines rules for married couples. Council Regulation (EU 2016/1104) determines rules for civil partnerships. These two regulations entered into force on January 29th, 2019.

The rules determine jurisdiction and applicable law for matrimonial and registered partnership property regimes in case of divorce, separation or the death of one of the spouses or partners.

The objective of the regulations is to increase foreseeability and legal certainty regarding jurisdiction and applicable law in the matter of property regimes of international couples. In addition, the regulations harmonise international private law rules between EU countries.

EU property regime rules determine the applicable law in the event of divorce or death

EU Regulations bring broader legal certainty and end parallel and/or conflicting proceedings in the various EU Member States.

The regulations do not affect the underlying institutions of marriage and civil partnerships. These remain matters defined by the national laws of the EU Member States.

Regulations explicitly regulate two cases of jurisdictional governance. These are the death of one of the spouses or registered partners, and divorce.

In the case of death, the court in a competent Member State, pursuant to EU Succession Regulations, will have jurisdiction in matters arising from the couple’s property.

In the case of divorce, the court called upon to rule on an application of divorce will have jurisdiction, provided the couple agrees. Couples may also reach an agreement regarding jurisdiction during court proceedings.

In cases other than the above mentioned, and in cases where spouses fail to reach agreement, jurisdiction lies with the courts of the Member State where couples are habitually resident. Failing that, jurisdiction lies with Member State where couples were last habitually resident, insofar as one of the spouses or partners is still considered resident there. Otherwise, jurisdiction lies with the courts of the Member State of the respondent’s habitual residence and failing that, the state of the couple’s common nationality at the time of court proceedings. The parties may also agree to give jurisdiction to a Member State whose law is applicable to the matter. Should the respondent take the matter to court, that court will have jurisdiction. This would be irrespective of which court has jurisdiction according to the aforementioned rules.

Choice of law rules is applicable to marriages and registered civil partnerships

The regulations allow spouses and registered partners to choose which country law shall apply in the event of divorce or death. Marriages and partnerships registered prior to 29th January 2019 are subject to national choice of law regulations.

The regulations are applicable in 18 EU Member States that joined the enhanced cooperation initiative on this matter, namely: Belgium, Cyprus, Greece, Croatia, Slovenia, Spain, France, Portugal, Italy, Malta, Luxembourg, Germany, Czech Republic, the Netherlands, Austria, Bulgaria, Sweden and Finland.

The EU members that did not adopt the Regulation are The Republic of Ireland and Denmark. These countries continue to use the choice of law rules of their national laws.

Regulations pertaining to applicable law are universal in scope. Thus, the law of any state, including states that are not members of the EU, may be found to be applicable. The law provided by the regulations is applicable to all assets, irrespective of  location.

Finally …

Divorce or death of a spouse or registered partner is hugely emotional wherever you live. Having to work through matters related to inheritance and asset separation can add to the pain. The complications multiply when couples live or own properties in different countries. We understand the legal complexities that international couples can face in Italy. If you need advice, we are here to help.

 

You may also be interested in Review of EU and Italian Divorce Law. You may also find our info videos useful.

 

Italian Estate Administration

“I have inherited Italian assets from a deceased relative. How does Italian estate administration work?”

We received this question from a reader wondering how to proceed with Italian estate administration. We hope that you find our answer helpful. If you have any queries related to Italian assets or inheritance law, please feel free to send your questions to us. We are here to help.

How is Italian inheritance governed?

According to the law of intestate succession, if the deceased didn’t have a will, the assets are transferred to descendants following the principles set out by Italian Civil Code.

If, on the other hand, the deceased made a will, this should indicate wishes regarding disposal of assets.

Types of will

In broad terms there are two types of will. Either an Italian will, which needs publishing and registering with the relevant Italian authorities. Or, a non-Italian will. In other words, an international will.

According to Italian inheritance obligations, an heir must first have an international will translated into Italian using a sworn translation in an Italian Court.

This can cause legal issues. A non-Italian will, especially if it lacks any explicit reference to the Italian assets, becomes subject to interpretation. In order to interpret the will, heirs need to engage an Italian attorney. This is because the Italian authorities need to ascertain whether or not the will is applicable to Italian assets. If the will does not expressly dispose of Italian assets, succession rights follow the rules of the Italian Civil Code.

Heirs need to accept or renounce an inheritance before Italian estate administration can begin

Whether the deceased left an Italian or international will, heirs have to formally accept or renounce their Italian inheritance. This can be done tacitly or explicitly.

Tacit acceptance is implied. It occurs if, for example, if the heir disposes of or otherwise has dealings with the Italian assets, thereby showing an intent to accept the inheritance.

An explicit acceptance involves making a deed using the services of an Italian notary.

Where an heir is unsure whether or not to accept or renounce an Italian inheritance, a third option, reserved acceptance, offers a possible alternative route.

Once an heir accepts an inheritance, Italian estate administration can begin.

Italian estate administration process

Within twelve months of the testator’s death, heirs or executors  need to file a statement of succession  with the competent authority, which is the tax office – Agenzia delle Entrate. The tax office then calculates estate tax.

Heirs or executors pay the relevant inheritance tax connected with the inheritance. The amount of estate tax payable depends on heirs’ relationship to the deceased and the value of assets each inherits.

The final stage of Italian estate administration involves re-registering immovable assets in the names of the heir(s).

Finally …

Trying to navigate the Italian inheritance procedure without the assistance of an experienced Italian inheritance attorney can be difficult, especially if you are abroad. We would recommend that you seek professional advice and guidance to manage the process sympathetically and efficiently. 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 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.

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