If you are looking to make Italian wills or are seeking guidance on the benefits of creating one, the following comprehensive information put together by the internationally regarded specialist Italian succession and wills solicitors at Giambrone Law 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 make things as smooth running as possible for your beneficiaries after you have gone, it is the right thing to do.
Should you leave your beneficiaries to handle your estate via a UK will, it is likely they will run into considerable difficulties. Any non-Italian will has to be authenticated by an Italian Notary Public before probate can be undertaken. Various difficulties can arise when processing foreign language wills and dealing with Italian succession, and 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.
Complications and delays can be averted if wills are created independently in each country where assets are owned. It is important though to ensure that the wills do not revoke each other and that rather than conflict, they work alongside each other so as to achieve the desired goals. It is therefore essential to make both your UK and Italian wills solicitors aware of each of your wills respectively.
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 better comprehend your wishes concerning how you wish for your estate to be distributed.
What are the differences between wills in the UK and Italy?
In the UK, a will allows you 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 free to exercise your own wishes.
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 certain proportions of an estate.
An EU law passed in August 2015 does however allow for your own national law to apply, providing you are a citizen of an EU member state. Therefore, as a UK national, you are able to state in your Italian will that the law of your own country should apply.
What would happen if I died without a will in Italy?
If you die without having made a will to cover your assets in Italy, then the rules of intestate Italian succession will apply. Effectively, this means that the closest relatives of the deceased will inherit a share of any fixed assets (i.e. property and land) according to Italian law.
For British citizens, the law of ‘scission’ applies 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 spouse and one child then 50 per cent will go to each, 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 is parents, siblings and their descendants, followed by uncles, aunts, nieces and nephews, and failing all of those, the Italian State.
Dealing with an estate and assets of someone who has died intestate can be complex and will often consume a great deal of time, sometimes running into years. This is why it is so important to make a will.
What are the different types of Italian wills?
There are three different types of Italian wills. The first is a handwritten or ‘holographic will’, known in Italian as a ‘testamento olografo’.
This is a will that is handwritten, dated and signed by the testator and can be set down in any language. There is no need for witnesses. Whilst it is a straightforward document, it is good practice to have it checked over by an Italian wills lawyer so that you can be sure that all the formalities and legal requirements have been covered.
The next type of will is a formal will (‘testamento pubblico’). These Italian wills are 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. You will need to make an appointment with an Italian Notary in order to make a formal will, but bear in mind that not all of them will 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.
What is the process for creating Italian wills?
It is always advisable to seek the advice of an Italian succession lawyer with specialist knowledge of cross-border legislation when making an Italian will as there are numerous aspects to cover, including tax and financial matters, which will vary between countries.
It is vital to understand the law associated with Italian wills and that the law of forced heirship applies automatically, unless you stipulate that you wish for UK law to apply. Documents must be completed with care so as to ensure wishes are complied with on death.
The first advisable step is therefore to engage an Italian solicitor who speaks fluent English so that they can guide you through the process and 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 associated competent authorities in order to complete the Italian succession process.
The first step is to determine whether there is a will and if so, the type of will. The next stage involves collating all the supporting documents. And then it is time to engage an Italian succession solicitor 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. After this step, it is necessary to pay any Italian inheritance tax due, ahead of being able to receive the inherited assets.
Italian succession entails a great deal of administrative process, and it is vital to be aware of the way the law works when dealing with an estate. Guidance from an Italian succession lawyer will ensure all the legalities are tended to according to correct procedure, whether there is an Italian will stipulating either Italian law, or the law of the testator’s native country is to apply; or the deceased has passed intestate. For more of an in-depth look at Italian probate, follow this link to our dedicated resource.
Italian Wills and Succession: Glossary of Terms
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.
Giambrone Italian Wills Solicitors: Cross-Border Experts in Italian Succession law
When a person dies leaving assets in multiple countries, a range of national laws and concepts will apply. Without an understanding of all of these laws, issues can arise that may result in the wishes of the deceased being misinterpreted. Giambrone Law offers this necessary level of understanding, and highly respected expertise in cross-border succession law.
Whilst complexities are part and parcel of the Italian succession process, they need not cause issue. With the right assistance from Italian wills solicitors from the outset, you can ensure that your loved ones do not find themselves facing drawn-out procedures unnecessarily.
To speak to a fluent English speaking expert about making an Italian will to ensure your assets are left with precisely who you wish them to be, get in touch with Giambrone Law.