How to Obtain Probate in Italy
Italian Succession process timing and Probate. Inheritance Services in Italy
Under Italian inheritance Law of succession, a person may dispose of his property and Estate in Italy for the time after death either by Will (Testamento) or alternatively, the estate will be passed to the heirs under the provisions of statutory rules.
Italian inheritance laws offer some degree of protection to family members, limiting the right of the testator to dispose of his own assets.
Legal Succession in Italy
Where a person dies without a valid Will, Italian law states who is going to inherit and how much (Successione legittima). The Italian inheritance is devolved following the principles of the Italian Civil Code, which indicates which individuals (legitimate heirs) are entitled to inherit the assets of the deceased. Such heirs are the spouse of the deceased and the relatives identified by the law starting from the closer ones until the 6th degree of connection. In absence of relatives within the 6th degree of connection the inheritance is devolved to the Italian State.
Inheritance by Italian Will and rules of forced heirship
Where a person dies leaving a valid Will, our lawyers in the Italian Probate Team will need to ascertain the validity of such Will, secondly deal with the formalities to be complied with and will calculated the taxes to be paid (property transfer taxes and inheritance taxes, depending on the degree of connection with the deceased). As a final stage, we will ensure that the Will is implemented and the relevant assets are legally transferred to the beneficiaries, which can be classified as heirs or legatees.
The principles of testamentary and legal succession cross with the principle of “forced heirship”: the Italian Civil Code reserves to very close relatives (spouse, ascendants and descendents defined as “forced heirs”) a significant quota of the inheritance that the testator cannot prejudice with his Will. The Italian legal system protects close family members – regardless of whether they are Italians or where they reside, preventing the testator from the possibility to exclude them completely from the inheritance.
The rules of forced heirship in the Italian Civil Code reserve the following entitlements to close family members:
Minimum Statutory Share
Only one child and no spouse:
50% of the Estate is reserved to the child
Two or more children no spouse:
66% reserved to the children in equal shares
Parents but no spouse and no children
33% of the Estate to the Parents
Only a surviving spouse
50% of the Estate is reserved to the spouse
A surviving spouse and a child:
33% to the spouse and 33% to the child
A surviving spouse and children:
25% to the spouse and 50% to the children
Surviving spouse and Parents but no child
50% is reserved the spouse and 25% to the Parents
In implementing the Will of an Italian national, 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) set out above. The wish to the testator to assign his assets to strangers under Italian law is accepted but is partially restricted.
When drafting his Italian Will the testator is free to dispose of a part of his asset defined as “disposable quota”. If a Will infringes such minimum statutory shares, the heirs who have been deprived of their forced heirship rights will have redress under the law and may apply to the Italian Courts. It should be noted that an Italian Will infringing the rights of the “forced heirs” is not necessarily invalid.
Such a Will is enforceable unless challenged in Court by the damaged “forced heirs” with a legal action called “azione di riduzione” (abatement legal action). Whatever the provisions in the Will, the Italian courts will then re-distribute the assets of the Estate in accordance with the above rules.
Our Italian probate lawyers will usually undertake the following activities:
- Obtain a copy of a public Will;
- Manage the entire probate process in compliance with the statutory provisions of Italian law
- Assess the parties’ inheritance rights according to Italian law
- Search for properties, titles, records throughout Italy
- Assist with the transfer of family properties according to Italian inheritance law
- Offer legal support for the sale of inherited properties, having obtained a preliminary survey of the inherited properties
- Calculate the property transfer taxes and the IHT liability, if any, related to the inheritance in conjunction with an Italian accountant
- Challenge in the Italian Courts a Will drafted in conflict with the Italian legislation
- Register an inherited property in the name of the heirs
- Obtain the release of funds deposited in bank account in connection with an inheritance
For more information, read the following article: How to obtain Italian Grant of Probate under Italian inheritance
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