ARTICOLI E PUBBLICAZIONI
The Global Property Guide - Inheritance
07/05/2007
The national law of the deceased generally applies to inheritance issues
Article 46 of Law. no. 218/1995 on Italian International Private Law ("IIPL”) provides for the application of the national inheritance law of the deceased foreigner at the time of his/her death. The religion, residence, or domicile of the deceased person has no relevance. The Italian rules on conflict of laws consider the possibility that the national law of a deceased foreigner might defer to the law of another country. Such deferment is effective only if the law of the third State accepts the deferment. When a deferment refers inheritance issues back to Italy, then an Italian judge will apply Italian substantive law.
According to IIPL, where a transaction involves real property, the competent jurisdiction is with the judge of the country where the property is located (art. 51 of Law no. 218/1995 and art. 22 of EC Regulation no. 44/2001). Consequently, jurisdiction will be with an Italian judge if:
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The deceased person was an Italian citizen at the time of death;
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The estate was opened in Italy;
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The majority of the estate of the deceased is located in Italy;
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The defendant is domiciled or is a resident in Italy or has accepted the jurisdiction of the Italian judge (unless the claim concerns fixed property that is located in a foreign country);
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The claim concerns property located in Italy, including transactions concerning the transfer of real property for reason of death.
In the event that Italian law is applicable, all inheritance issues are governed by the rules contained in Book II of the Italian Civil Code (Articles 456 - 809). The jurisdiction for inheritance claims belongs to the judge of the place where the estate was opened (article 22 of the Italian Code of Civil Procedure), i.e. the place of the last domicile of the deceased person (article 456 of the Italian Civil Code). Even if the opening of the estate took place outside the Italian Republic, the jurisdiction for inheritance claims belongs to the judge of the Italian venue where the majority of the estate of the deceased was located or, in the absence of real property, to the judge of the city of residence or domicile of the defendant.
A reserved portion applies in Italian law
In Italian law, some members of the family gain the right to receive a fixed portion of the property of the deceased, even against the will. This legal provision is termed necessary succession. The law reserves a portion of the inheritance to the following people:
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The spouse is reserved half of the estate, unless the deceased leaves any children. Article 540 of the Italian Civil Code reserves the right of the spouse to occupy the family home, and to use its furniture, even if there are other heirs;
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If a parent leaves only one child, legitimate or natural, he/she is reserved half of the estate. If more then one child is left, the children receive two thirds of the estate, divided into equal parts;
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If the deceased leaves only legitimate ancestors, they have the right to receive one third of the estate.
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If the deceased leaves a spouse with only one child (legitimate or natural), both of them have the right to receive one third of the estate.
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If the deceased leaves a spouse with more than one child, the spouse gains one fourth of the estate and the children altogether receive half.
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If the deceased leaves only legitimate ascendants and a spouse, the ascendants receive one fourth of the estate, and the spouse one half.
Legitimate succession occurs in the absence of a will
Italian law determines which relatives of the deceased have a right to succeed by legitimate succession in the absence of a will, or if the will is invalid. The primary persons involved in legitimate succession are the forced heirs (the spouse, the legitimate and natural children, and the ascendants). Legitimate succession is assigned to the spouse, legitimate and natural descendants, ascendants, collateral and other relatives, according to the following rules:
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The persons primarily called to inherit are the legitimate and natural children and their descendants, all of them in equal parts.
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If the deceased leaves a spouse and children, then an only child inherits half of the property; but if more than one child, then the children together inherit one third.
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If the deceased does not leave any children, his/her parents, ascendants, brothers and sisters inherit the property, but if the spouse is left as competitor, then the spouse inherits two thirds.
· In the absence of legitimate or natural children, parents or ascendants,
brothers and sisters, the spouse inherits the entire property.
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In the absence of the spouse, legitimate and natural children, parents or ascendants, brothers and sisters, the person who succeed the deceased in the property are the relatives from the first degree to the sixth one included.
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In absence of any persons entitled to succeed, the inheritance is assigned to the State.
If Italian law is not applicable, the law of the country where the testator dies applies (lex successionis - Article n. 46 L. 218/1995). The family relationships regulated by the national applicable law determines which relatives have the right to succeed and the prevalence between them.
It is advisable for a foreigner to make a will
A foreigner with assets in Italy is advised to make a will, in order to avoid long hazardous proceedings for inheritors and family members. Italian law admits three types of will:
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An holograph will is a private deed. It has to be handwritten, dated, and signed personally by the testator. It can be drawn up at any time using any kind of sheet, without any cost. It can be kept by the testator, but it is more convenient for the testator to deliver the will to a public notary for publication, in order to avoid destruction before or after death;
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A secret will is not necessarily drawn up in the holograph way. It has to be delivered to a public notary in the presence of two witnesses through very complex formalities provided by law;
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A public will must be delivered to a public notary in presence of two witnesses and it has to be signed by the testator. The advantage of a public will is that the notary personally collects the will in the presence of witnesses and the will immediately provides compliance with Italian law in respecting the wishes of the testator.
Article 48 of the law n. 218/95 establishes that the will must be considered valid by the law of the State where the will was made, or where the testator was a citizen at the moment of making the will. Alternatively, the will must be considered valid by the law of the State where the deceased had domicile or residence, or where the deceased was present at the time of death.
In the light of the above, it is advisable, and simpler, for a foreigner who is not resident in Italy, to draw up an holograph will, to which the Italian system attributes full effectiveness as much as a public will drawn up by an Italian notary; however the holograph will must comply with the formal requirements provided by Italian Civil Code. The holograph will has to be delivered, preferably in a sealed envelope, to a trustworthy person, who, after the death of the testator, will deliver it to an Italian notary for all the necessary fulfilments (publication, registration, transcription in the competent Real Estate Public Register, payment of inheritance tax). Considering that the will is a particularly sensitive document, it is better to deliver it directly to an Italian public officer, who gives a receipt of deposit containing all the testator's data.
Pursuant to law No. 90/387, Italy entered into the Washington Convention of October 26, 1973, providing a uniform law on the form of an international will. As a consequence, if the international will (of an Italian or a foreigner) is handwritten, even by third parties, it is considered formally valid, irrespective of the place where it was drawn up, the nature of the goods, the object of the inheritance, the domicile or residence of the testator, or the language used to write the will.
Property may be giften during the lifetime of the owner
According to substantive Italian law, every person, during his life, may freely donate property to third parties. The gift, in order to produce transferring effects, must be in the donor"s ownership (i.e. the gift of future goods is null) and the donation has to be done by public notarial act in the presence of two witnesses.
Heirs may legally restore the reserved portion
The deceased can freely dispose of only a part of his estate (available portion) by means of a gift, or in a will, since a part (reserved portion) must be inherited by the forced heirs. If the reserved portion is not respected, the forced heirs have at their disposal a specific legal action called “azione di riduzione” that permits them to restore the reserved portion.
In order to establish whether a testator has damaged the rights of forced heirs by making, in his/her lifetime, donations in favour of third parties, or certain forced heirs, it is necessary to calculate the entity of the testator’s ownership at the time of the opening of the estate. The total value of the deceased’s property is calculated, including that donated during his/her lifetime, and any debts are subtracted from the sum. The available portion which the testator can legally dispose of is calculated on the basis of these calculations. If the testamentary dispositions or donations exceed the portion which the testator can legally dispose of, then each forced heir can ask for an abatement (starting from the last testamentary disposition or donation). The “azione di riduzione” must be filed within ten years from the opening of the estate. Any person who has received donations or legacies in terms of money or property from the deceased during his/her lifetime is obliged to give back such things to the forced heirs (the so called "collazione").
Rights of ownership are protected in Italian law
Italian law look at registered ownership and registered rights to determine the ownership of real property. There are other law concepts, such as possession, which are also protected under certain circumstances. In order to protect one's rights, the Italian legal system provides for certain instruments that ensure the certainty of juridical subjective situations by making public the facts and the juridical acts. Book VI of Italian Civil Code regulates one of the most important means of publicity, the registration. The registration concerns those acts that deal with the ownership of real estate and movable registered goods, and consists of the reproduction of the contents of such acts in special registers of public consultation. The common element of all such acts is the reproduction of constitutive, modificative, transferance, and/or extinctive effects regarding real estate.
Art. 30 of law no. 218/1995 provides that the rights of married couples with different nationalities to own property are regulated by the law of common citizenship, or by the law of the place where their married life was prevalently located. A married couple may agree in writing that their ownership of property is regulated by the applicable law of the State where one of them is a citizen, and of which at least one of them is a resident.
Minors may inherit property
If an estate, or part of it, is inherited by a child, or children not of legal age, or others not legally adult, the inheritance must be managed by their parents. If both parents are dead or unable to exercise paternal authority, the tutelary judge designates a guardian to take care of the interests of the minor.
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