WHO CAN MAKE AN ITALIAN WILL

 A person who is

• at least 18 years old

• the legal owner of the remaining assets

• of sound mind (capace di intendere e di volere). In the event of a dispute over the mental capacity at the time of drafting the will, a court will decide.

WHO SHOULD MAKE AN ITALIAN WILL……

Italy recognises as valid an Intenational will as valid, but it is recommended that a foreigner makes a will in Italy if he/she

• is living permantly in Italy, having the residence there at the time of his death

• is a Foreigner who owns immovable property (house, flat, land) in Italy.

The main reason for making an Italian will is to simplify matters at the time of death.

………AND WHY?

• Heirs of an only English will may have substantial difficulty in dealing with the transfer of any Italian assets. This is because the will must be authenticated before an Italian Notary Public.

• The Notary, or any other Italian Professional may have substantial difficulty in examining the English will with regard to the Italian assets, in resolving the conflicts between the English and Italian law, as well as advising heirs and/or preparing suitable documentation to transfer the assets.

• the costs of translation of all English documents in Italy are going to be very higher, more than the cost of making an Italian will

• you must save money in respect of Inheritance Tax, because the Italian legislation is more generous than the English one (see INHERITANCE TAX CHAPTER). This in practice means that the small / medium Estates are not subject to Inheritance tax in Italy.

DIFFERENT WAYS OF MAKING A WILL

Under Italian law there are three different ways of making a valid Will:

1. Handwritten Will (Holographic will – Testamento Olografo)

This document:

• is personally handwritten by the person making the Will (Testator),

• is dated (determining the most recent will in the event of these being several

• is signed.

• 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 formal and substantive  legal requirements have been satisfied.
 

2. Formal Will (Testamento Pubblico)

This document

• is drafted by an Italian notary upon the instructions of the Testator,

• is read out by the Notary to ensure that it complies with the wishes of the Testator

• is signed by the Testator in the presence of witnesses.

• is lodged with the Italian notary.

• is a fairly formal document.

• will not be lost / disregarded,

• involves a cost (notarial fees),

• is disclosed to a third party, because it is public will, not secret.

3) 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.

WHAT IS THE ACTUAL PROCESS OF MAKING A WILL?

In the case of

a) Handwritten Will (testamento olografo)

There is no need of witnesses, there is no attestation clause. It can be a very simple letter or document draft directly by the testator.

b) Formal will (testamento pubblico)

It is necessary to have an appointment by the notary and explain the will of making a “testamento pubblico”, giving the relating instructions. Not all Italian Notaries speaks English, better to find out one English speaking. Generally the witnesses requested are elected by the notary between his clerks.

The costs

c) Secret will (testamento segreto) see above

WHO PREPARES THE WILL

It is better to have legal advise by a lawyer dealing with the two jurisdictions. Wills and probate matters involve taxation issues , then ask to an Italian accountant should be advisable in preparation of the will (generally an Italian lawyer can introduced you to him and works together).

If you have chosen to make a Testamento pubblico, the public Notary can draft the wills according your instructions; it is not simple to find a Notary dealing with the two jurisdiction, as the Testamento Pubblico involves only the Italian legislation.

HOW LONG DOES IT TAKE

It is not a long procedure, It is important to prepare all documents accurately. Contact an Italian professional (lawyer or Notaio) and avoid changing your mind, if possible (actually you can change your will up to the time of death, but if you are in good health why make the notary or the lawyer crazy changing your intentions a few minutes after drafting the will)

In case of emergency you can write your will directly or contact a Notary who can receive your last will.

WHAT HAPPENS AFTER THE DEATH OF THE WILL-MAKER?

Firstly, you must ascertain what kind of will the testator made.

You must collect all the documents affecting the testator’s properties and contact an italian professional (Lawyer, Notaio, Accountant or Geometra) to make the “Dichiarazione di successione”.

The “dichiarazione di successione” must be made by the heirs within 6 months from the date of death. They must complete a form in which all the assets will be included, apply to Ufficio delle Entrate (Tax office) of the town where the deceased was resident. If the deceased was not resident in Italy, the declaration of succession must be presented to the relevant Tax Offices in Rome.

Finally, the Professional will be able to complete the procedure by registering the new owners at Ufficio del Catasto. A registration tax must be paid, calculated on the value of the assets.

ITALIAN INHERITANCE TAX

The heirs will be requested to pay the Inheritance Tax when they present the above mentioned declaration to the competent office.

The Italian inheritance tax was abolished in 2001 but it has been recently re-introduced by the government.

The new Italian Inheritance Tax is now levied at three different flat rates, on the whole or part estate of the Deceased with reference to the beneficiaries entitled, as follows:

– 4% where the Estate or part of the Estate devolves to the Deceased’s spouse or children, with a nihil rate band up to € 1,000,000 each (which at current exchange rates is equivalent to an exempt slice of £ 657,800 for the spouse and each of the children) (the so called “Franchigia”).

– 6% where the Estate or part of the Estate devolves to brothers or sisters (subject to an exempt amount of Euro 100,000 each) and to other relatives of the Deceased up to the 4th degree (without any “exempt amount”),

-8% where the Estate or part of the Estate devolves to unrelated parties. Where the Estate or part of the Estate devolves to one or more disabled children, the exempt amount is increased to Euro 1,500,000 (£ 986,800 at the current rate of exchange).

– where the Estate includes a business or a substantial shareholding in a company, whatever their amount, they are not taxed on death if they pass to the children of the Deceased, and the said children undertake to continue to carry on the business or control the company for at least 5 years.

IS THE PROCESS DIFFERENT FOR FOREIGN RESIDENT

The English rules relating to succession may vary according to whether the estate consists of movables or immovables and whether the deceased has left a will or died intestate.

The Italian legal system has adopted the principle of unity of succession; as consequence, the legislation of the deceased’ s country apply.

Contrary to the Italian legal system, the English law has adopted the so called principle of “scission” with the result that the succession of movables is governed by the law of the deceased’s domicile, while the succession of immovables is governed by the law of the situs.

For example, if you bought a property in Italy in your name and you still own it at the time of your 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 the Italian law of succession.

Avv. Carlo Bottino

Lawyer in Milan

Tags: inheritance, Italian family law, Italian will, italy, probate | Categorie: FAMILY LAW, ITALIAN PROPERTIES, MISCELLANY, REAL ESTATE, SUCCESSION AND PROBATE