Forum Italy

[detullio]

Dear all,

Let me share with you information about succession in Italy. I hope that it will be helpful for you. If you have any questions, comments or cases, that need my advice, please do not hesitate to contact me.

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
www.detulliolawfirm.com