Successione (Italian Succession and Probate. Inheritance Services in Italy)

Successione (Italian Succession and Probate. Inheritance Services in Italy)

Under Italian inheritance Laws of Succession, an individual may dispose of his estate in Italy either by making a will (Testamento) or alternatively, the estate will be passed to the heirs under the provisions of statutory rules which provide for the deceased's relatives in varying proportions depending on how close the relationship to the deceased was.

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 succession law has very clear provisions clearly outlining who is going to inherit and how much (Successione legittima). The Italian inheritance is devolved following the principles of the Italian Civil Code. The legitimate heirs of the deceased are the spouse, the children and the other relatives are identified by the law starting from the closer ones until the 6th degree of connection. Should the deceased have no heirs the estate is devolved to the Italian State.

Inheritance by Italian Will and rules of forced heirship

Giambrone's Italian probate team can assist the heirs in the first place by ascertaining the validity of a will, secondly, our lawyers can deal with the formalities that are required to be complied with and calculate the taxes that are due to be paid (property transfer taxes and inheritance taxes, depending on the degree of connection with the deceased). Lastly, we will ensure that the will is implemented and the relevant assets are legally transferred to the beneficiaries, 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 descendants defined as “forced heirs”) The Italian legal system relating to inheritance is designed to protect close family members – regardless of their nationality or place of residence preventing the testator from excluding them completely from the inheritance.

The rules of forced heirship in the Italian Civil Code are as follows:

Beneficiaries

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's family receive their minimum statutory share of the Estate (Quota di legittima) as set out above. The wish to the testator to assign his assets to strangers under Italian law is accepted but is restricted.

When drafting his Italian will the testator is free to dispose of a part of his assets defined as “disposable quota”. If a will infringes the minimum statutory shares that the legitimate heirs are entitled to there is redress under the law and they may apply to the Italian courts. It should be noted that an Italian will infringing the rights of the “forced heirs” may not necessarily be invalid.

Such a will is enforceable unless challenged in court by the complainant “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 rules outlined above.

Our Italian lawyers in the probate team will undertake the following on your behalf:

  • 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 liabilities, if any, related to the inheritance in conjunction with an Italian accountant
  • Challenge in the Italian courts any 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 a bank account in connection with an inheritance

For more information, read the following article: How to obtain Italian Grant of Probate under Italian inheritance

Italian Succession and Probate Law

Foreign citizens can be subject to Italian inheritance laws when part of their inheritance is located in Italy, the individual maintains residence in Italy or has dual citizenship.

This mostly occurs most of the time when assets located in Italy are being disputed, and is a direct consequence of the U.S. citizens being affected by the provisions of the European Succession Regulation (1), which in several cases indicates the applicable law of succession of the Member States, both for the jurisdiction and the substantial law of succession.

Where the Italian substantive law of succession shall be applied, the more restrictive Italian succession rules come into consideration, which may overrule most of the settlor’s testamentary disposition (under the terms of the will).

Probate is a Rarity in Italy

Italian inheritance laws regulate in great detail many aspects of the conveyance of the estate to potential heirs. Both the testator and the heirs have little room to maneuver. It is for this reason that, unlike in the United States, we do not usually go to court to manage succession (probate). Instead, we pay taxes and make land transfers for property (Cadastre) to ensure that heirs are properly registered as landowners. Therefore, Italian probate, wherein the will is “proved” in court, is the exception, not the rule, and only occurs when the will is contested.

Inheritance by will and forced heirship

There are numerous legal limits for succession in Italy. First of all, those passing on possessions after death must follow the law regarding reserved quotas for immediate family members, principally the spouse and children (forced heirs). Testators can decide which heirs receive what, but proportions of the reserved quota cannot vary. After that, the law allows the testator to allocate, as he or she sees fit (quota freely available to the testator).

The Intestate Succession

If there is no will, quotas are predetermined by Italian Inheritance laws. The first to be considered are immediate family members (spouse, children or even parents depending on the age of the testator). Absent these, second-degree relatives (brothers and sisters) are considered, then third-degree and so on. In calling upon so many degrees of relatives, the law seeks to ensure the existence of an heir. The process can go up to the sixth degree before the state takes over (intestate succession).

Automatic heirs

Italian inheritance law even establishes that a party who possesses property of the testator can automatically become an heir under some circumstances. Obviously, this is what happens in the majority of cases: the status of heir is bestowed by mere possession of assets.

Succession Tax Statement

There is, however, a need to declare succession to the Agezia delle Entrate within one year of the testator’s death, or else face increasing fines with each passing year. Since inheritance is also considered an inseparable whole by tax authorities, those who pay the taxes must pay them for the entire estate, and cannot split them up (2).

Succession Timing and Successors not living in Italy

Based on the above, you see that succession is a relatively quick process.

However, it may happen that a successor does not know about the passing of the deceased, or knows but is not in possession of any asset or does not perform an act of extraordinary administration (for which he or she would automatically become heir). This relative may be living abroad, for example. If none of the other heirs (who have accepted inheritance) requests a deadline from the court, the aforementioned successor has theoretically up to ten years to accept the inheritance.

Italian Inheritance Laws: The Ten-Year Rule

The above ten-year deadline is mandatory (Ten-Year Rule). There are certain circumstances where you be able to negotiate some kind of settlements. Call us and we can discuss any option you may have.

Italian Succession and Co-Ownership of the Estate

According to the Italian inheritance laws, the inheritance of an estate is accepted in its entirety. This means that multiple heirs (provided they accept) become co-owners of the entire estate. If, for example, a testator who owned two buildings and a piece of land leaves them to a spouse and three children, all four become co-owners of the buildings and the land. Heirs can request a division of assets, but only after accepting ownership of the estate.

Expert Lawyer support

Since the rights of the heirs and the succession processes are well-defined by the Italian inheritance laws, a lawyer expert in succession matters can help a settlor in several ways, and most effectively by elaborating a will that allows the settlor of a cross-border succession to bequeath his/her assets with the maximum freedom permissible by EU and Italian rules on succession.

An Italian attorney specializing in inheritance laws can represent an illegitimately excluded successor in court, as well as defend the heir’s rights when he or she was left with less than would have been entitled by law (such as when the deceased gifted in his life to other heirs: collation of estate and gifts).

A lawyer’s representation may also be needed when the successor wants to avoid confusing his or her estate with the that of the deceased (especially when there might be consistent debts), or when other successors do not take a decision about becoming heirs (the interested party may ask the court to set an immediate deadline, to shorten the standard ten-year deadline mentioned above).