Italian inheritance basics
May 25th 2009, 1:41 pm
#1
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Joined: May 2009
Posts: 17
Italian inheritance basics
Hello everybody,
As a result of my everlasting wish to inform people about good / safe ways to own property in Italy, I’ve decided to post this time my contribution around the subject of ‘Inheriting a property in Italy’. We Italians have spread ourselves all over the world, which can bring some of you in the interesting position of receiving a property in Italy from a family member that has passed on. I have supported many different clients and have experienced legal issues around this subject.
Here are my views how to make use of your inheritance right without any legal complications in Italy.
ITALIAN INHERITANCE BASICS
The law n.218 of the 31st of May 1995 regulates the field of inheritance law in the framework of international private law.
The succession rules are determined on the basis of the national law of the deceased party at the moment of his death.
The Italian legislator adopted the principle of “unity of the inheritance”.
This principle differs substantially from the one adopted in common law countries.
This legal principle is based on the separation between non-property assets and property assets: to non- property assets is applicable the law of the last domicile or last citizenship of the deceased party, to property assets 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 hereditary asset includes properties located in different States, the succession of each single property could be regulated by the law of the country where the property is located.
The law regulating the succession is the national law of the deceased at the time of his death.
The Italian rules on conflict of laws consider the possibility that the national law of a deceased foreigner might defer to the law of another country. Such deferment is effective only if the law of the third State accepts the deferment.
Here is a practical example: if a British citizen before his death left some properties in Italy, the succession will be regulated by the British law. But following the British “conflict law” the law applicable to properties should be the “lex rei sitae (law of the country where the property is located), therefore the Italian law.
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 of the rights that the Italian law provides for the so called “legittimari” ( members of the family who have the right to receive a fixed part of the property of the deceased even against the will) who are resident in Italy at the moment of death of the deceased.
It is highly advisable to draft an Italian will assisted by your Italian lawyer in order to limit the consequences of the “legal succession”. The “legal succession” 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).
In case of lack of heirs, according to the Italian law, the hereditary assets present in Italy would be assigned to the Italian State.
Furthermore the cost of translating all the relevant foreign or English-language documents into Italian after the death of the foreign owner of an Italian property most likely will be greater than the cost of drafting an Italian will.
I hope this article will help you. If there are any questions, please let me know and I will gladly answer. If there are other topics related to Italian property legislation, I will happily consider it when writing future articles.
Avv. Giandomenico De Tullio
As a result of my everlasting wish to inform people about good / safe ways to own property in Italy, I’ve decided to post this time my contribution around the subject of ‘Inheriting a property in Italy’. We Italians have spread ourselves all over the world, which can bring some of you in the interesting position of receiving a property in Italy from a family member that has passed on. I have supported many different clients and have experienced legal issues around this subject.
Here are my views how to make use of your inheritance right without any legal complications in Italy.
ITALIAN INHERITANCE BASICS
The law n.218 of the 31st of May 1995 regulates the field of inheritance law in the framework of international private law.
The succession rules are determined on the basis of the national law of the deceased party at the moment of his death.
The Italian legislator adopted the principle of “unity of the inheritance”.
This principle differs substantially from the one adopted in common law countries.
This legal principle is based on the separation between non-property assets and property assets: to non- property assets is applicable the law of the last domicile or last citizenship of the deceased party, to property assets 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 hereditary asset includes properties located in different States, the succession of each single property could be regulated by the law of the country where the property is located.
The law regulating the succession is the national law of the deceased at the time of his death.
The Italian rules on conflict of laws consider the possibility that the national law of a deceased foreigner might defer to the law of another country. Such deferment is effective only if the law of the third State accepts the deferment.
Here is a practical example: if a British citizen before his death left some properties in Italy, the succession will be regulated by the British law. But following the British “conflict law” the law applicable to properties should be the “lex rei sitae (law of the country where the property is located), therefore the Italian law.
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 of the rights that the Italian law provides for the so called “legittimari” ( members of the family who have the right to receive a fixed part of the property of the deceased even against the will) who are resident in Italy at the moment of death of the deceased.
It is highly advisable to draft an Italian will assisted by your Italian lawyer in order to limit the consequences of the “legal succession”. The “legal succession” 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).
In case of lack of heirs, according to the Italian law, the hereditary assets present in Italy would be assigned to the Italian State.
Furthermore the cost of translating all the relevant foreign or English-language documents into Italian after the death of the foreign owner of an Italian property most likely will be greater than the cost of drafting an Italian will.
I hope this article will help you. If there are any questions, please let me know and I will gladly answer. If there are other topics related to Italian property legislation, I will happily consider it when writing future articles.
Avv. Giandomenico De Tullio
May 26th 2009, 6:43 pm
#2
Forum Regular
Joined: Apr 2009
Posts: 78
Re: Italian inheritance basics
Good evening Avocato Tullio, may i ask you a question, i live here in Italy. Last year a second cousin of my husband died. He had already prepared a will (Orografo) with the help of the executor (who was inheriting the house) he was just a friend!! My husband was the only relative included in the will. My worry is this, we were to inherit a coin collection which is still inside the house, i am very afraid that it will be taken by the executor. I just know the weight of the gold coins but not the full description. Is there any way that i could hold him to give us what is ours otherwise we will apply to the courts to oppose the will?? Thank you in anticipation for your answer ( I am so fed up with being fregato) i just dont want it to happen again...
Jun 15th 2009, 2:01 pm
#3
Just Joined
Thread Starter
Joined: May 2009
Posts: 17
Re: Italian inheritance basics
Good evening Avocato Tullio, may i ask you a question, i live here in Italy. Last year a second cousin of my husband died. He had already prepared a will (Orografo) with the help of the executor (who was inheriting the house) he was just a friend!! My husband was the only relative included in the will. My worry is this, we were to inherit a coin collection which is still inside the house, i am very afraid that it will be taken by the executor. I just know the weight of the gold coins but not the full description. Is there any way that i could hold him to give us what is ours otherwise we will apply to the courts to oppose the will?? Thank you in anticipation for your answer ( I am so fed up with being fregato) i just dont want it to happen again...
Excuse me for the delay in answering you. I will need to read the Will to be able to give an answer to your request.
Please send me a copy to [email protected].
Jun 22nd 2009, 10:03 am
#4
Just Joined
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Joined: May 2009
Posts: 17
Italian succession
Dear all,
Let me share with you information about succession in Italy. (SNIP).
It is an undisputed principle of Italian and International law that Italian real estate properties are regulated under Italian inheritance law independently from the nationality of the owner.
Italian inheritance law offers to any person having legal capacity (18 years old and sound mind) the right to dispose of his property for the time after his death by means of Will. In absence of a Will the Italian law will regulate this matter.
Should a person die without a valid Will, the Italian law will decide who is going to inherit, this is defined “legal succession”. On the contrary when a person dies leaving a valid Will this will be defined a “testamentary succession”. The law offers to the testator the possibility to dispose of his assets. This principle is not absolute; under Italian succession law certain members of the family - defined "forced heirs" - are legally entitled to a share of the deceased's assets at the time of death. This compulsory share or forced heirship is called legittima (reserved quota).
It’s essential to explain that, in order to calculate the “reserve quota” we must take in consideration not only what left after death but also what has been donated during the life. This is necessary in order to take in due consideration any previous donation.
Summarizing:
• Testamentary Succession: regulated by the Will of the testator
• Legal Succession: regulated by the law (Will is missing)- Relatives until the 6th degree are taken in consideration, if they are not present the State intervenes. This means that in case of absence of a will and of legitimate heirs the Italian State will inherit.
One of the principles of the Italian legal succession is the protection of the family. As a result of this some heirs cannot be excluded from the succession (forced heirs).
In case of presence of forced heirs the testator will be in the position to dispose only of part of his assets (disposable quota).
A part of his assets (reserved quota) must be assigned to forced heirs.
Legal succession
Reserved quota for forced heirs
The Italian law reserves a quota of the inheritance to forced heirs.
Forced heirs are:
a) Legitimate, natural, adopted children
b) Married partner
c) Legitimate ascendents (only in absence of children)
Reserved quota
CHILDREN
1 child: 50% of the asset belonging to his parent; the remaining 50% is freely disposable.
2 or more children: 2/3 of the asset; the remaining 1/3 is freely disposable
ASCENDENTS
Legitimate ascendents: 1/3 of the asset; the remaining 2/3 are freely disposable
MARRIED PARTNER
For the surviving married partner: 50% of the asset + right of use of the family residence together with furniture (the last rights effect the disposable quota); the remaining 50% is freely disposable
MARRIED PARTNER AND CHILD
Child: 1/3
Married partner: 1/3 +right of use of the family house; the remaining 1/3 freely disposable
2 or more children: the total riserve quota ¾
Married partner: ¼ +use of the family house
Children: ½ divided in equal shares
The remaining ¼ freely disposable
MARRIED PARTNER+ASCENDENTS
Married partner: ½ + use of the family house
Ascendents: ¼
¼ freely disposable
Testamentary succession
We are summarizing the essential aspects of a valid Italian Will:
• Unilateral
• Personal
• Revocable ;
• Spontaneous.
• Of economic relevance
• Of personal relevance ( e.g. legal recognition of a child);
• Void: binding agreements
• Void: decisions concerning Will delegated to third parties.
• Formal; strictly regulated by the law.
• Written: verbal wills are void
• Individual: joint wills are void;
• Reciprocal wills are void. This means that any reciprocal commitment appearing on a will would be considered void if submitted to the condition to appear in the will of another person)
After the death of the testator the will must be published, in order to inform the heirs of the content. This responsibility is delegated by the law to a notary public.
Advantages of an Italian will
There are benefits to creating an Italian will and following Italian law:
Unfortunately inheritance disputes are extremely frequent. This risk is even higher when there is a situation of ambiguity deriving by different legislations and jurisdictions.
• The presence of an Italian will professionally drafted will minimize the risk of conflicts among heirs. This can easily be the case if one of the forced heirs believes that his rights have not been respected. An Italian Will can be extremely useful in order to mitigate the effects of the Italian legal succession. Not having a clear understanding of the latter could lead to results that might not be in line with the wishes of the testator. This could be the case if the testator is not any longer in good terms with a close member of his family.
• Another very important aspect to take in consideration is the language barrier and the differences between legal systems, all aspects that could create difficulties with the Italian Authorities when the latter are confronted with a foreign or international Will.
Italian Authorities are often reluctant to manage foreign legal documents.
This could generate significant difficulties for heirs who would be then obliged to translate a large number of documents in Italian.
As we previously mentioned the Will needs to be published at the presence of an Italian notary public before the assets can be assigned. Having an Italian Will is surely useful to prevent any difficulty of linguistic nature, also preventing possible conflicts of law.
Ultimately the cost of drafting an Italian Will is very affordable and can lead to substantial savings if you consider the number of legal documents that will need to be translated into Italian should you only have a foreign Will.
Avv. Giandomenico De Tullio
Let me share with you information about succession in Italy. (SNIP).
It is an undisputed principle of Italian and International law that Italian real estate properties are regulated under Italian inheritance law independently from the nationality of the owner.
Italian inheritance law offers to any person having legal capacity (18 years old and sound mind) the right to dispose of his property for the time after his death by means of Will. In absence of a Will the Italian law will regulate this matter.
Should a person die without a valid Will, the Italian law will decide who is going to inherit, this is defined “legal succession”. On the contrary when a person dies leaving a valid Will this will be defined a “testamentary succession”. The law offers to the testator the possibility to dispose of his assets. This principle is not absolute; under Italian succession law certain members of the family - defined "forced heirs" - are legally entitled to a share of the deceased's assets at the time of death. This compulsory share or forced heirship is called legittima (reserved quota).
It’s essential to explain that, in order to calculate the “reserve quota” we must take in consideration not only what left after death but also what has been donated during the life. This is necessary in order to take in due consideration any previous donation.
Summarizing:
• Testamentary Succession: regulated by the Will of the testator
• Legal Succession: regulated by the law (Will is missing)- Relatives until the 6th degree are taken in consideration, if they are not present the State intervenes. This means that in case of absence of a will and of legitimate heirs the Italian State will inherit.
One of the principles of the Italian legal succession is the protection of the family. As a result of this some heirs cannot be excluded from the succession (forced heirs).
In case of presence of forced heirs the testator will be in the position to dispose only of part of his assets (disposable quota).
A part of his assets (reserved quota) must be assigned to forced heirs.
Legal succession
Reserved quota for forced heirs
The Italian law reserves a quota of the inheritance to forced heirs.
Forced heirs are:
a) Legitimate, natural, adopted children
b) Married partner
c) Legitimate ascendents (only in absence of children)
Reserved quota
CHILDREN
1 child: 50% of the asset belonging to his parent; the remaining 50% is freely disposable.
2 or more children: 2/3 of the asset; the remaining 1/3 is freely disposable
ASCENDENTS
Legitimate ascendents: 1/3 of the asset; the remaining 2/3 are freely disposable
MARRIED PARTNER
For the surviving married partner: 50% of the asset + right of use of the family residence together with furniture (the last rights effect the disposable quota); the remaining 50% is freely disposable
MARRIED PARTNER AND CHILD
Child: 1/3
Married partner: 1/3 +right of use of the family house; the remaining 1/3 freely disposable
2 or more children: the total riserve quota ¾
Married partner: ¼ +use of the family house
Children: ½ divided in equal shares
The remaining ¼ freely disposable
MARRIED PARTNER+ASCENDENTS
Married partner: ½ + use of the family house
Ascendents: ¼
¼ freely disposable
Testamentary succession
We are summarizing the essential aspects of a valid Italian Will:
• Unilateral
• Personal
• Revocable ;
• Spontaneous.
• Of economic relevance
• Of personal relevance ( e.g. legal recognition of a child);
• Void: binding agreements
• Void: decisions concerning Will delegated to third parties.
• Formal; strictly regulated by the law.
• Written: verbal wills are void
• Individual: joint wills are void;
• Reciprocal wills are void. This means that any reciprocal commitment appearing on a will would be considered void if submitted to the condition to appear in the will of another person)
After the death of the testator the will must be published, in order to inform the heirs of the content. This responsibility is delegated by the law to a notary public.
Advantages of an Italian will
There are benefits to creating an Italian will and following Italian law:
Unfortunately inheritance disputes are extremely frequent. This risk is even higher when there is a situation of ambiguity deriving by different legislations and jurisdictions.
• The presence of an Italian will professionally drafted will minimize the risk of conflicts among heirs. This can easily be the case if one of the forced heirs believes that his rights have not been respected. An Italian Will can be extremely useful in order to mitigate the effects of the Italian legal succession. Not having a clear understanding of the latter could lead to results that might not be in line with the wishes of the testator. This could be the case if the testator is not any longer in good terms with a close member of his family.
• Another very important aspect to take in consideration is the language barrier and the differences between legal systems, all aspects that could create difficulties with the Italian Authorities when the latter are confronted with a foreign or international Will.
Italian Authorities are often reluctant to manage foreign legal documents.
This could generate significant difficulties for heirs who would be then obliged to translate a large number of documents in Italian.
As we previously mentioned the Will needs to be published at the presence of an Italian notary public before the assets can be assigned. Having an Italian Will is surely useful to prevent any difficulty of linguistic nature, also preventing possible conflicts of law.
Ultimately the cost of drafting an Italian Will is very affordable and can lead to substantial savings if you consider the number of legal documents that will need to be translated into Italian should you only have a foreign Will.
Avv. Giandomenico De Tullio
Last edited by Mitzyboy; Jun 22nd 2009 at 1:17 pm. Reason: comment removed
Jun 22nd 2009, 12:18 pm
#5
BE Enthusiast
Joined: Oct 2008
Location: Cesena
Posts: 552
Re: Italian succession
What's the thread about?
What do you want us to say?
This looks like an Advert?
I thought that if you died and did not have a will it all went to the wife or the children..quite easy really unless where I live in Italy they are all lying:
What do you want us to say?
This looks like an Advert?
I thought that if you died and did not have a will it all went to the wife or the children..quite easy really unless where I live in Italy they are all lying:
Jun 22nd 2009, 1:16 pm
#6
Senior Moment
Joined: Jan 2006
Location: On the edge
Posts: 20,460
Re: Italian succession
Do you not think its useful information?
Jun 22nd 2009, 1:29 pm
#7
Concierge
Joined: Apr 2007
Location: Verona/ Nr Turin
Posts: 4,672
Re: Italian succession
Easy, we're talking Italy here. Giandomenico gives us a law lesson once in a while. Trying to drum up business I suppose. Well I'm not popping it yet.
Last edited by 37100; Jun 22nd 2009 at 1:31 pm. Reason: It started hailing.
Jun 23rd 2009, 5:21 am
#8
MODERATOR
Joined: Apr 2008
Location: Province of Vicenza
Posts: 19,036
Re: Italian succession
Question for Giandomenico...........
I am not married, I have two children, both born here to an Italian father, both minors.
Can my partner write a will and leave me everything?
Where does his mother come into this equation?
Thank you.
I am not married, I have two children, both born here to an Italian father, both minors.
Can my partner write a will and leave me everything?
Where does his mother come into this equation?
Thank you.
Jun 23rd 2009, 7:41 am
#9
Just Joined
Thread Starter
Joined: May 2009
Posts: 17
Re: Italian succession
If this is the case the two children will be considered according to Italian law as “forced heirs”.
This means that they cannot be totally ignored in the Italian Will.
The situation is different if your partner is not the natural father of the children, only in this case his mother will be entitled to succession rights.
Jun 23rd 2009, 7:44 am
#10
Senior Moment
Joined: Jan 2006
Location: On the edge
Posts: 20,460
Re: Italian succession
In order to reply this question is crucial to find out whether your partner is the natural father of your two children.
If this is the case the two children will be considered according to Italian law as “forced heirs”.
This means that they cannot be totally ignored in the Italian Will.
The situation is different if your partner is not the natural father of the children, only in this case his mother will be entitled to succession rights.
If this is the case the two children will be considered according to Italian law as “forced heirs”.
This means that they cannot be totally ignored in the Italian Will.
The situation is different if your partner is not the natural father of the children, only in this case his mother will be entitled to succession rights.
Jun 23rd 2009, 8:32 am
#11
MODERATOR
Joined: Apr 2008
Location: Province of Vicenza
Posts: 19,036
Re: Italian succession
In order to reply this question is crucial to find out whether your partner is the natural father of your two children.
If this is the case the two children will be considered according to Italian law as “forced heirs”.
This means that they cannot be totally ignored in the Italian Will.
The situation is different if your partner is not the natural father of the children, only in this case his mother will be entitled to succession rights.
If this is the case the two children will be considered according to Italian law as “forced heirs”.
This means that they cannot be totally ignored in the Italian Will.
The situation is different if your partner is not the natural father of the children, only in this case his mother will be entitled to succession rights.
So my mother-in-law will not. I know that she is legally his next of kin in case of accident etc. as we are not married.
Thanks.
Jun 24th 2009, 7:18 am
#12
Just Joined
Thread Starter
Joined: May 2009
Posts: 17
Re: Italian succession
According to such principle to movable goods UK inheritance law will apply while to immovable goods the law of the country where the property is located.
As a direct consequence, should you own a real estate in Italy, the succession of such property will be regulated exclusively under Italian law.
This will happen independently from the UK Will.
This is the reason why it’s always advisable drafting an Italian Will under such circumstances; this will be very important in order to mitigate the rules of the Italian Legitimate Succession.
Jul 1st 2009, 6:55 am
#13
Just Joined
Thread Starter
Joined: May 2009
Posts: 17
Frequently asked questions – Italian inheritance law
I am a foreign (non Italian) citizen and I own a property in Italy. What inheritance law will apply to my Italian property?
If you own a property in Italy the applicable inheritance law will always be the Italian one independently from your nationality. This principle is defined as “lex rei sitae”, the law where the property is located.
With my Will is it possible to dispose only of some of my assets?
YES; the assets mentioned in the Will will be inherited by the heirs mentioned in the Will. The remaining Italian assets will go to the forced heirs.
Having direct relatives (ascendents and/or descendents) may I destinate part of my asset to an institution?
YES; independently from your family situation you can always destinate a part of your inheritance (the diposable one) to other parties or institutions (e.g. charity).
For married partners is it legal drafting a joint Will?
NO, WILLS ARE STRICTLY PERSONAL DEEDS. Each partner must draft an individual Will.
Are there any relatives who cannot be excluded in the Succession?
YES; relatives in direct line are entitled to a reserved quota:
Children or nephew/niece;
Parents (in absence of children)
married partner
What happens if a will violates the rights of the forced heirs?
The forced heirs may accept the Will or alternatively challenge it.
What are the rights of the married partner, the separated partner and the divorced partner?
Married partner and separated partner have exactly the same rights.
With the divorce all rights terminate.
Is it possible nominating more beneficiaries in the same Will?
YES; it is possible to nominate more beneficiaries, each one of them pro-quota (heir A 1/3, heir B 1/3, heir C 1/3) or different beneficiaries for each single asset (my beach house to heir A, my city house to heir B).
Is it possible changing my Will throughout time?
YES; it is always permitted changing or amending or revoking the WILL.
Who should I contact should I decide to draft an Italian Will?
You should contact a bilingual Italian lawyer or a bilingual Notary public.
What should I do with my Will?
You should put it under the custody of a person you trust.
Avv. Giandomenico De Tullio
If you own a property in Italy the applicable inheritance law will always be the Italian one independently from your nationality. This principle is defined as “lex rei sitae”, the law where the property is located.
With my Will is it possible to dispose only of some of my assets?
YES; the assets mentioned in the Will will be inherited by the heirs mentioned in the Will. The remaining Italian assets will go to the forced heirs.
Having direct relatives (ascendents and/or descendents) may I destinate part of my asset to an institution?
YES; independently from your family situation you can always destinate a part of your inheritance (the diposable one) to other parties or institutions (e.g. charity).
For married partners is it legal drafting a joint Will?
NO, WILLS ARE STRICTLY PERSONAL DEEDS. Each partner must draft an individual Will.
Are there any relatives who cannot be excluded in the Succession?
YES; relatives in direct line are entitled to a reserved quota:
Children or nephew/niece;
Parents (in absence of children)
married partner
What happens if a will violates the rights of the forced heirs?
The forced heirs may accept the Will or alternatively challenge it.
What are the rights of the married partner, the separated partner and the divorced partner?
Married partner and separated partner have exactly the same rights.
With the divorce all rights terminate.
Is it possible nominating more beneficiaries in the same Will?
YES; it is possible to nominate more beneficiaries, each one of them pro-quota (heir A 1/3, heir B 1/3, heir C 1/3) or different beneficiaries for each single asset (my beach house to heir A, my city house to heir B).
Is it possible changing my Will throughout time?
YES; it is always permitted changing or amending or revoking the WILL.
Who should I contact should I decide to draft an Italian Will?
You should contact a bilingual Italian lawyer or a bilingual Notary public.
What should I do with my Will?
You should put it under the custody of a person you trust.
Avv. Giandomenico De Tullio
Jul 13th 2009, 7:11 am
#14
MODERATOR
Joined: Apr 2008
Location: Province of Vicenza
Posts: 19,036
Re: Frequently asked questions – Italian inheritance law
Out of curiosity, how much does it cost to draw up a will in Italy?
Jul 13th 2009, 9:46 am
#15
Forum Regular
Joined: Apr 2009
Posts: 78
Re: Italian inheritance basics
Hi Lorna, im sorry but i have no idea!!!!! It cost us 98,00euro just to get a copy of the will, so god only knows how much the whole thing costs..Have a good day...