It is generally recommended that foreign citizens owning assets in Italy draft an Italian will as Italian succession without a will can be a long and drawn out process. This prevents significant difficulties to heirs when transferring the ownership of Italian properties or movable assets such as funds held in postal bonds or bank accounts in Italy originally registered in the name of the testator to the benefactor.
A competent Italian Lawyer can help you to draft an Italian will that complies with Italian law: such will may have the form of an Italian will (holographic, public or secret will) or, depending on each person's individual circumstances. It may be appropriate to prepare a foreign will under your home jurisdiction providing there are provisions in such will that clearly state that (a) the foreign will specifically deals with the Italian estate and (b) pursuant to a specific electio legis (choice of law), you declare in such foreign will that you wish to bequeath your Italian estate under the laws of your home country, as allowed by Law 218/1995. If you decide to prepare a foreign will for your Italian estate, it is recommended that an Italian translation is made at the same time.
When a person dies leaving assets in more than one country there can be conflicting National laws as different countries recognise different concepts which influence succession to the deceased's assets. For example, England recognises the concept of domicile; France, Belgium and Denmark apply the concept of habitual residence whereas Italy, together with other countries such as Spain, Portugal and Germany apply the concept of nationality
The interconnection between these concepts and their application to the succession of a cross-border European estate may be very complex; it is strongly recommended for benefactor to obtain advice and support from an Italian Probate Lawyer, expert in the field of Italian inheritance dispute and succession laws in Italy, as different rules may apply to non-Italian testators and to foreign beneficiaries of an Italian inheritance bequeathed by Italian will.
In all cases, clients need to ensure that the Italian lawyer they appoint has specialist knowledge of the succession rules of each country where they hold assets and how they interact with each other and – if they hold assets in Italy - it is advisable to consult an Italian law firm specialised in grant of probate.
Whilst Italy recognises the validity of international wlls, it would be a wise precaution for a non-Italian citizen to draft an Italian will if you own properties or land in Italy. Dealing with documents drafted in a foreign language (and governed by different legal jurisdictions) in Italy can raise a number of difficulties and an Italian will, in our experience, will assist in the transfer of any Italian assets and help in the release of bank accounts. This will also avoid the issue of the authentication of a foreign will by an Italian Public Notary which is required before executing the Grant of Probate and remove the potential for conflicts between foreign and Italian law. The costs involved in appointing a certified and qualified translator as demanded by Italian law to translate the foreign will for the Public Notary far outweigh the costs of drafting an Italian will.
Furthermore, when an international will disposes of Italian assets contrary to the provisions of the civil code in Italy and in breach of the rules of forced heirship, it is not uncommon for an excluded beneficiary to decide to challenge its validity; this would invariably lead to lengthy and expensive litigation.
A well drafted Italian will significantly reduce any risk of future litigation between the beneficiaries or the heirs.
To be legally eligible to make an Italian will, a person must be:
- At least 18 years old
- The legal owner of the remaining assets disposed in the will
- Of sound mind (capace di intendere e di volere)
An additional benefit is that Italian will can often speed up the administrative procedures to be carried out with Italian banks. Bank accounts and bank deposits of the deceased will be frozen following the account holder's death. The procedure to unfreeze them and obtain deposited funds can be protracted and costly as heirs could be called upon to pay certain expenses such as utility bills from their own pockets in whilst waiting for access to the bank account.
Italian law dictates that a minimum statutory share (Successione Necessaria) of the estate be bequeathed to immediate family members before the balance may be freely disposed of. It is therefore important the will-maker understands the law and how it affects the proposed distribution of his/her assets: this limits the effects of Italian legal succession and ensures that Italian property is disposed of according to the testator's wishes and without violating Italian provisions regulating succession and circumventing the strict rules of forced heirship under Italian law.
There are clear advantages to drafting an Italian will are briefly described as follows:
- a reduction in the risk of conflict among heirs
- a potential for a reduced tax bill for heirs
- provides Italian authorities with a better understanding the deceased's wishes regarding disposal of his/her estate
It goes without saying that it is essential to keep the will in a safe place, for example in the hands of an independent Italian solicitor who can guarantee its safe keeping and can advise possible heirs about its existence once the testator has passed away.
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