Italy recognises an international will as valid, but it is recommended that a foreigner make a will in Italy if they:
The main purpose for making an Italian will is to simplify matters at the time of death.
The cost of translating all pertinent foreign or English-language documents into Italian after the death of the foreign will-holder is likely to be greater than the cost of making an Italian will.
English nationals should note: Italian legislation is more generous than English legislation with regard to inheritance tax. This in practice means that small to medium estates are not subject to inheritance tax in Italy.
Under Italian law there are three recognised types of valid will:
This document is:
Although it is a simple document, it is advisable that it be checked by a lawyer to ensure that all the formal and substantive legal requirements have been satisfied.
It can be a very simple letter or document drafted directly by the testator. There is no need for witnesses and no attestation clause.
The process: An appointment with a notary is made to explain the requirements and give instructions (not all Italian notaries speak English). The witnesses are typically clerks selected by the notary.
This is a will drafted or written by the testator and placed in a sealed envelope which is then delivered to an Italian notary. The contents of the remain secret until after the death of the testator when the sealed envelope is opened. Notarial fees for a Secret Will are less than those for a Formal Will.
The process: As with a Testamento Pubblico, an appointment must be made with a notary to deposit the sealed will.
When it comes to making a will in Italy it is recommended to get advice from a lawyer, ideally one familiar with both Italian and the will maker's national jurisdictions. Wills and probate matters involve taxation issues; an Italian accountant should be consulted for the preparation of the will (generally an Italian lawyer can direct a testator to an accountant - they may work closely together).
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 their assets.
Will making is not a time-consuming procedure, but it is important to complete all documents accurately. It is suggested to contact an Italian professional (lawyer or Notaio) for guidance. While it's recommended to avoid frequent changes to the terms and beneficiaries, a will can be changed to accommodate a change of circumstance at any point until the time of death. The most recently made will is considered valid.
In case of emergency, a testator may write their will directly or contact a notary who can receive the last will.
In order to settle the deceased's estate, it must first be ascertained what kind of will the testator made.
Collect all the documents affecting the testator's properties and contact an Italian legal professional (lawyer, notario, accountant or geometra) to make the Declaration of Succession (Dichiarazione di Successione).
The Dichiarazione di Successione must be made by the deceased's heirs within six months of the date of death.
In order to make a Declaration of Succession:
The legal professional will be able to complete the procedure by registering the new owners at the Land Registry (Ufficio del Catasto). A registration tax must be paid, which is calculated based on the value of the assets.
Under Italian succession law certain members of the family - "forced heirs" - are automatically entitled to a share of the deceased's assets at the time of death. This compulsory share or forced heirship is called legittima.
The following are entitled to the statutory fixed share (Successione Necessaria) of the deceased's estate:
These particular rules on forced heirship apply when the deceased is an Italian national.
A foreigner may follow the same rules as an Italian national providing their own national law allows it.
There are benefits to creating an Italian will and following Italian law:
The Italian legal system has adopted the principle of unity of succession; as a consequence, the legislation of the deceased's country of nationality applies.
For example, if an English national buys a property in Italy, it is registered in their name and they still own it at the time of their death, under the English rules its succession should be regulated by the Italian law of succession. The Italian legal system accepts this "referral" by the English law and therefore the succession of this asset will be regulated by Italian law.
The rules of forced heirship can apply to a foreigner with an Italian will. In the will it is possible to choose the Italian or the foreign Law with the electio legis which is a codicil through which a person can decide to which legislation their estate is to be referred after death.
By the Italian rules of forced heirship, even if the deceased has left all their assets to a person who is not a compulsory heirs, the compulsory heirs will still receive their share.
General guidelines suggest that a foreigner with a Italian assets with a value of more than €350,000 and a simple family structure should choose to make a will under Italian Law to save on tax charges. However, if a foreigner with Italian assets wants to be free to choose their heirs they should insert the electio legis in the will providing this complies with their country's law.
If a will does not exist for the deceased, or if an existing will has been declared invalid, the Italian general rules on intestate succession apply. Therefore the closest relatives of the deceased are entitled to a share of the assets in accordance with the provision of Italian law.
British citizens: English law has adopted the principle of scission, which means that the succession of movable assets is governed by the law of the deceased's domicile (the country where the deceased lived), while the succession of immovable assets is governed by the law of the situs (where the property is located). For example, if a British citizen without a will has a property in their name in Italy at their time of death, under English law the inheritance should be regulated by the Italian law of succession. The Italian legal system accepts this "referral" by the English law and therefore this asset is regulated by the Italian law of succession.
If there is no surviving spouse, the following are entitled to inheritance:
Italian inheritance tax was abolished in 2001 then consequently re-introduced by the government. Heirs are required to pay Inheritance Tax when they present the declaration to the competent office.
Italian Inheritance Tax is levied at three different flat rates, on the whole or part of the Estate of the deceased with reference to the entitled beneficiaries, as follows: