Italian Wills & Succession Solicitors
If you would like to make Italian will or are seeking guidance on the benefits of creating one, the following information has been compiled to answer many of the most commonly asked questions.
Why do I need an Italian will – could I just use my UK will instead?
If you own property or land in Italy, or live there full time, then it is advisable to make an Italian will. If you want to ensure that everything will run smoothly for your beneficiaries after you have died.
Leaving your executors or beneficiaries to manage your estate via will under the law of England & Wales may result in considerable difficulties arising. Any non-Italian will has to be authenticated by an Italian Notary Public before probate can be undertaken. All supporting documentation must be officially translated into Italian, the cost of which is likely to be far more than actually drafting an Italian will in the first place.
If wills are created independently in each country where assets are owned this will limit the prospect of complications and significantly shorten the time taken to finalise the process. It is important though to ensure that the wills do not revoke each other and that rather than conflict, they work alongside each other to achieve the desired goals. If you choose two separate lawyers to draft the wills it is essential to make both your lawyers aware of terms of both of your wills.
An Italian will also has the effect of reducing the potential for conflict between beneficiaries; it can lead to a reduced inheritance tax bill and assists the Italian authorities to understand your wishes concerning your estate.
What are the differences between wills in the UK and Italy?
In the UK, you have the freedom to choose whoever you wish to inherit your estate. This is known as ‘testamentary freedom’, and means that as long as you stipulate in a will the details of who you want to inherit and in what proportions, you are not constrained by laws of succession.
In Italy however, there is a system of ‘forced heirship’. Under Italian wills, there is no right to freely determine the distribution of your assets, because Italian law provides that certain family members are legally entitled to inherit a designated proportion of their relative’s estate.
An EU law passed in August 2015 does however allow foreigners to rely on their national law, providing you are a citizen of an EU member state.
What would happen if I died without a will in Italy?
If you die without having made a will which includes your assets in Italy, then the rules of intestate Italian succession will apply. Meaning that your closest relatives will inherit a share of any fixed assets (i.e. property and land) according to Italian law.
The law of ‘scission’ will apply to non-fixed assets, which means that the intestate law of the deceased’s domiciled country applies when there is no will.
The lines of Italian succession that apply to intestate cases start with the entire estate passing to any surviving spouse, either married or legally separated but not divorced; if there is a surviving spouse and one child then 50 per cent will go to the spouse and 50 per cent to the child, and if there are two children and a spouse then a third will go to each. If there is no surviving spouse or children then the next line of succession are parents, siblings and their descendants, followed by uncles, aunts, nieces and nephews, and failing all of those, the Italian State.
There are different types of Italian wills, what are they?
There are three different types of Italian wills. The first is a handwritten or ‘holographic will’, known in Italian as a ‘testamento olografo’; handwritten, dated and signed by the testator and can written in any language. There is no need for witnesses. Whilst it is a straightforward and legitimate document, it is good practice to have it reviewed by an Italian inheritance lawyer to ensure that all the formalities and legal requirements have been addressed.
The next type of will is a formal will (‘testamento pubblico’). This type of Italian will is drafted by Italian Notaries according to the instructions of the testator. The Notary then reads the will aloud so that the testator can confirm it meets with their wishes, before being signed in the presence of witnesses. Before making an appointment with an Italian Notary you should bear in mind that not all of them speak English, so you may need to take an official translator with you.
The third and final type of Italian will is a secret will, or a ‘testamento segreto’. These wills are drafted by the testator and then placed in a sealed envelope before being taken to an Italian Notary by appointment for storage. The contents remain undisclosed until after the death of the testator.
How do you create an Italian will?
You should seek the advice of an Italian succession lawyer with specialist knowledge of cross-border legislation when making an Italian will who will be able to draft your will in accordance with the law associated with Italian wills and that the law of forced heirship which applies automatically, unless you stipulate that you wish for England & Wales law to apply.
The first step is therefore to engage an Italian solicitor who speaks fluent English and knowledge of both jurisdications to ensure you have complete clarity on every point. They will advise you on the most appropriate type of will to make in your individual circumstances, and will accompany you to your Notary appointment as well as arrange a translator if necessary.
What happens after I die – how does Italian probate work?
On your passing, your beneficiaries will have certain obligatory tasks to undertake, including an official search for a will; making an inventory of the assets; ascertaining whether there is a safety deposit box and bank accounts, and making contact with the appropriate authorities in order to embark on the Italian succession process.
Once the type of will has been established, the next stage involves collating all the supporting documents which is best undertaken with the assistance of an Italian lawyer, who will then assist you to make your Declaration of Succession (Dichiarazione di Successione), which is similar to the UK Grant of Probate.
This declaration must be made within six months of the date of death, and involves completing Italian Ministry of Finance documentation stating the worldwide assets of the deceased and details of the beneficiaries, and either applying to the tax office of the town in Italy where the deceased was resident, or presenting the declaration before the relevant tax office in Rome if the deceased was not an Italian resident. It will then be necessary to pay any Italian inheritance tax due, before being able to receive the inherited assets.
Italian succession involves a significant amount of administrative procedures, and guidance from an Italian succession lawyer is strongly advised will ensure all the legalities are dealt with correctly regardless of the type of will and the law of the country which is to be applied.
Glossary:
Declaration of Succession: the equivalent of a Grant of Probate and known in Italian as the Dichiarazione di Successione. This document allows assets in Italy to be released to the beneficiaries and must be made within six months of the date of death.
Intestate: when someone dies without making a will, they are said to have died ‘intestate’. This will lead to fixed assets such as property being distributed according to Italian law.
Statutory Share: successione necessaria in Italian, this is the minimum statutory share of an estate that must be left to immediate family members before the balance can be disposed of freely.
Testamentary Succession: the assignment of the estate of a deceased testator according to the wishes set out in their Italian will.
Unity of Inheritance: the principle on which Italian succession is based. It is founded on the difference between property and non-property assets, where different laws apply. The law of the last domicile or citizenship of the deceased applies to non-property assets, whereas with property assets, the law of the country where the property is located applies.