DISPOSING BY WILL / INHERITING AN ITALIAN PROPERTY
Index:
Dr Claudio Del Giudice
Rivington House
82 Great Eastern Street,
London EC2A 3JF
(United Kingdom)
Tel 0044 207 613 2788
Fax 0044 207 613 2799
Under Italian law a
person may dispose of his / her property / Estate for the time after his / her
death by Will (Testamento) or alternatively, let the law to deal with
this matter.
Where a person dies without a valid Will, (Intestata) Italian law states
who is going to inherit and how much (Successione legittima). Where a
person dies leaving a valid Will the law will first ascertain the validity of
such Will, secondly provide a set of formalities to be complied with and, in
some case taxes to be paid, thirdly will ensure that the Will is implemented and
the relevant assets are legally transferred to the persons entitled (Eredi /
legatari).
In implementing the Will Italian law will also ensure that the immediate members
of the Deceased family are not deprived of their minimum statutory share of the
Estate (Quota di legittima). Where the Will infringes such minimum
statutory shares, the Will will not implemented / the heirs who have been
deprived or are affected will have redress under the law.
Italian succession law and probate is complex and in this document I can only
provide general indications. You should always seek the advice of a specialised
Italian lawyer where seeking to make an Italian Will, trying to dispose of
property located in Italy or should you inherit any property in Italy.
1) ITALIAN
WILLS - Under Italian law there
are three different ways of making a valid Will:
a) Handwritten Will
(Testamento Olografo) - This is a document handwritten personally by the
person making the Will (Testator), dated and signed. There is no need of
witnesses, there is no attestation clause. It can be a very simple letter or
document.
This document can be in any language, written on any paper / other medium.
Although it is a simple document, it is advisable that it should be checked by a
lawyer to ensure that all the requirements are satisfied.
b) Formal Will
(Testamento Pubblico) - This is a document drafted by an Italian notary
upon the instructions of the Testator, read out by the Notary to ensure that it
complies with the wishes of the Testator and signed by the Testator in the
presence of witnesses.
This is a fairly formal document. While it provides reassurance that the Will
will not be lost / disregarded, it involves a cost (notarial fees), and its
contents are immediately disclosed to third parties (witnesses).
c) Secret Will
(Testamento Segreto) - This is a Will drafted / written by the Testator
and placed in a sealed envelope which is then delivered to an Italian Notary.
The notarial fees are reduced, the contents of the Will shall remain secret
until after the death of the Testator when, the sealed envelope will be open.
In some cases, foreign Wills will be recognised under Italian law. However this
is a complex matter. Where a person owning property in Italy wishes to make a
foreign Will (say, wishes to make a Will in accordance with English law), it is
recommended that the matter be considered both by an Italian lawyer and a lawyer
practising in the relevant foreign jurisdiction.
One of the problems of Wills under Italian law is that the law provides that the
members of the family are entitled to minimum statutory shares (Successione
necessaria). So, it is not simply a question of the form / formalities of
making the Will but is also a question of ensuring that the minimum shares of
the various beneficiaries are complied with. This is a substantive matter.
The rules relating to minimum statutory shares of the Estate, may not, in some
cases apply. Generally the following relatives will be entitled to the following
minimum statutory shares:
IF A PERSON
DIES LEAVING: Minimum Statutory
Share
Only one child and no spouse:
to the
child
1 / 2 of the Estate
Two or more children but no spouse:
To the children in equal shares a total
of 2 / 3 of the
Estate
One or more "Ascendenti" (generally
parents) but no spouse and no
children 1 / 3
of the Estate
Only a surviving spouse
To the surviving
spouse 1 / 2
of the Estate
A surviving spouse and a child:
to the surviving
spouse 1 / 3
of the Estate
to the
child
1 / 3 of the Estate
A surviving spouse and children:
to the
spouse
1 / 4 of the Estate
to the children in equal shares a total
of 1 / 2 of the
Estate
A surviving spouse and "Ascendenti"
but no children:
to the
spouse
1 / 2 of the Estate
to the "Ascendenti"
1 / 4 of the Estate
If there is a breach of these rules, the beneficiary affected, who has
been excluded or receives by Will less than his minimum statutory share
of the Estate, can impugn the Will and apply to the Italian courts.
Whatever the provisions in the Will, the Italian courts will then
re-distribute the assets of the Estate in accordance with the above
rules.
It will be apparent from the above that these rules are very complex,
and this is why the assistance of a qualified Italian lawyer is
advisable.
2)
ITALIAN PROBATE
- Where a person dies owning property (land or buildings) it may be
necessary to collect documentation, organise certified translations of
documents, appoint a local notary and to follow special procedures to
ensure that the property is transferred at the Land Registry in the name
of the beneficiaries entitled.
The first point to note is that Italian Inheritance Tax (Imposta
sulle Successioni e Donazioni) was abolished in 2001, so that only
minor taxes (Imposta ipotecaria and Imposta catastale) for a
maximum amount of 3% of the value of the property will be payable in
Italy. Where particular conditions apply, these taxes are further
reduced to Euro 168 each (Prima casa), for a total tax of Euro
336 whatever the value of the property !!!
This, however will not prevent foreign taxes being payable. Where the
Deceased was born / domiciled in the United Kingdom the position should
be considered with the assistance of specialised UK accountants, as UK
Inheritance Tax may be payable.
The second point to note is that, although Italian Inheritance tax was
abolished several years ago, there is still a requirement to lodge an
Italian Inheritance tax Return (Dichiarazione di Successione) in
any event, where property (land or buildings) is involved, within one
year from the death of the Deceased. This will, eventually ensure that
the property is correctly re-registered at the Land Registry in the name
of the beneficiaries entitled.
The third point is that where the Estate includes a bank account,
special formalities will continue to apply, depending on the particular
Italian bank involved. Unfortunately in most cases the procedure to
obtain the release of funds held at the time of death by the Deceased
with a bank is frequently time consuming and expensive, as to avoid
fraud, Italian banks will have to ensure that the funds are released to
the correct beneficiaries.
Generally where the Deceased did not own land or property, nor a bank
account in Italy, the probate procedure can be extremely simple. Italian
law does not require executors to be appointed.
View: "How
your Italian villa will not be taxed on death: the new Italian
Inheritance Tax" (January 2007).
Dr Claudio Del Giudice
Copyrights reserved - September 2005