Testamentary Succession in Italy
Are you a foreign citizen called to inherit through a will drafted in Italy? In this brief post, we will explain how to proceed. Before delving into the topic, we note that in this article, we will focus on testamentary succession, omitting other forms of succession provided for by Italian law. If you want to know the characteristics and procedures of inheritance succession in general, we recommend reading our article where the topic is explained in detail.
What is testamentary succession?
Succession is deemed testamentary when the testator (“de cuius”) disposes of his or her assets or part of them for the time following their death with a revocable act, indicating the beneficiaries and their respective shares. It is important to clarify that the Italian testator can allocate and dispose of the available share of the inheritance. Although it is permitted to identify heirs outside the family context, there are individuals (called legitimate heirs) who, by the Italian law, cannot be excluded.
The requirements for an Italian testator to write a valid will are:
- Attainment of legal age (18 years)
- Absence of mental incapacity
- Ability to understand and intend at the time of drafting the will (“testamenti factio”)
What provisions can an Italian will contain?
An Italian will can include both moral and material provisions. The material provisions concern the appointment(s) of heirs (allocating all or part of the estate to the beneficiary/beneficiaries pro rata) and bequests (allocating specific assets or rights to one or more individuals).
What are the different types of wills regulated by Italian law?
Starting with the treatment of the two fundamental and most common forms in practice, we have:
- Italian public will, drafted by means of a notarial deed: the testator, in the presence of two witnesses, declares their wishes to the Notary, who reproduces them in a legally correct written form. The original of this deed is kept in a secure place within the notary’s office, while a sealed copy is transmitted to the Notarial Archive. At the same time, the Notary enters the information about the will’s deposit into a computerized archive (General Register of Wills). As long as the testator is alive, these steps are covered by absolute secrecy; only after the testator’s death can any person go to the Notarial Archive with a death certificate and inquire whether the deceased person left a public will with any Notary in the district.
The advantages of this type of will include: drafting by a professional (ensuring clarity and validity of the document), public faith (as the notarial deed is valid until a challenge for forgery is raised, potentially immune to challenges for falsehood), secure storage, and easy accessibility (through a simple search at the General Register of Wills).
- Italian holographic will, drafted directly by the testator who can keep it with them or entrust it to another party. The latter, upon learning of the testator’s death, is obliged to take it to a notary for publication. The essential elements for the validity of this type of will are: holography (entirely handwritten by the testator, without the use of mechanical instruments or dictation by the testator), the inclusion of the date, and the testator’s signature.
While not presenting the same advantages as a public will, it is possible to seek the advice of a Notary to avoid nullity of testamentary provisions. Moreover, after depositing the holographic will, the Notary can draw up a report on the will’s deposit and keep it together with public wills, in the file of acts of last will, then communicate the existence of the will to the General Register of Wills. Note: if the testator, for various reasons (illness, etc.), cannot write the will by hand and sign it, they can only resort to a public will, drafted by a Notary with specific formalities.
Conversely, special and very rare forms include:
- Special will: provided in special circumstances (e.g., cases of public calamities, contagious diseases…) when the testator’s statements of intent are entrusted to a public official (e.g., notary, justice of the peace, mayor…)
- Secret will: drafted by a notary without being read to witnesses (this is done only after the testator’s death)
Essential elements of all Italian wills include:
- Revocability or modifiability until the last moment of life;
- Deferred effectiveness (therefore not immediate) at the time of the testator’s death; before that, there is absolute secrecy and no effects are produced. For example, the Italian testator remains the owner of the assets disposed of in the will and could freely sell them (which would constitute an implicit revocation of the testamentary provision).
When can an Italian will be null or voidable?
According to the Italian Civil Code, a will is null if it conflicts with imperative norms (e.g., in case of formal defects or for an illicit reason). The action for nullity can be exercised by any interested party.
The will is voidable if one or more of these causes occur:
- Formal defects that do not lead to nullity
- Incapacity of the testator to dispose (e.g., in the case of minors or incapacitated persons)
- Defects in the testator’s will (error, violence, or fraud). The action for annulment can be exercised by any interested party and has a prescription period of five years, starting, in case of incapacity, from the date of the will’s execution or, in case of defects in the will, from the date of their discovery.
How to identify the available share and the legitimate share in testamentary succession in Italy?
Since, as mentioned above, testamentary succession may contain provisions regarding the available share and the legitimate share, let’s see in more detail what they involve.
- Available share: is the part of the inheritance that the testator can freely dispose of, choosing heirs and conditions.
- Legitimate share: is the part of the inheritance recognized by law to the spouse and descendants. If there are close family members (spouse, children), Italian law limits the freedom to dispose of one’s assets. In fact, each legitimate heir is entitled to receive a share of the estate (i.e., a share of all the assets belonging to the deceased, after subtracting any debts). In particular:
- If the testator is married without children, the spouse is entitled to 50% of the estate.
- If the testator is married and has one child, both the spouse and the child are entitled to 33% of the estate.
- If the testator is married and has two or more children, the surviving spouse is entitled to 25% of the estate, and the remaining 50% is divided equally among the children.
- If the testator has only one child (while the spouse is deceased), the child is entitled to 50% of the estate (in the presence of multiple children, they are allocated 66.66%, divided equally).
Beneficiaries of testamentary succession in Italy
Apart from the obligation, as mentioned earlier, to reserve part of the inheritance for legitimate heirs, the testator can identify potential heirs among:
- Natural persons born or conceived before the succession
- Legal persons (e.g., assistance entities, etc.) What matters is the unequivocal, clear, and precise identification of each beneficiary.
In addition to these individuals, testamentary succession may also include so-called legatees: these individuals do not assume full ownership of the estate or a part of it (therefore, they are not responsible for the deceased’s debts), but acquire specific patrimonial rights. For example, the testator could bequeath a specific item (a piece of jewelry, a car, etc.) to a loved one.
If the heir called to the inheritance in Italy is an Italian citizen residing abroad?
In this case, if designated in a testamentary succession opened in Italy, it is allowed to participate without having to go to one’s home country. Indeed, the citizen, through the issuance of a special power of attorney, can entrust a third party with the task of managing and carrying out all stages of the succession. The advice is to confer the power of attorney to an Italian lawyer; in this way, the professional can act on behalf and in the interest of the represented citizen.
How to issue a special power of attorney?
To be validly used in Italy, the special power of attorney must be signed by the Italian citizen residing abroad before a local notary. The notary, first of all, will verify the personal identity of the heir, authenticate their signature, and proceed with the necessary legalization of the document. It should be noted that each legalization procedure has a different legal regime depending on the foreign state of reference and any ratification of international conventions concerning the matter. In summary, through the special power of attorney, one can confer the power to perform any activity potentially related to the succession: for example, accepting or renouncing the inheritance, filing the declaration of succession (if you are interested in delving into the topic, you can consult this article), and even the power to participate in any mediation proceedings (if disputes related to inheritance arise).
If the heir called is not an Italian citizen?
In this case, if the power of attorney is drafted in a foreign language, it must be translated, and its certification will be provided by the Italian Consulate.
What other procedures are necessary?
In the case where the Italian testator has left a dormant fund in a current account, or securities or banking contracts of any kind, to release them, the Italian citizen residing abroad must sign, using the same methods described earlier, a notarial act. This is a declaration of faith, required by banks and credit institutions, in which facts notorious concerning the succession are declared.
If the heir residing abroad wishes to renounce the inheritance in Italy?
According to Italian law, the act of renouncing the inheritance must be entered in the succession register kept by the court in the place where the succession was opened. Therefore, it is necessary to transmit the renunciation to the inheritance made at the Consulate of Italy abroad to the Italian court for insertion in the indicated register. There is no strict deadline for registration in court, but it is advisable to proceed within a year of the testator’s death to avoid investigations by the Italian Revenue Agency. If, indeed, the act of renunciation is not entered in the register, the heir called to the inheritance, despite renouncing, could face legal action brought by any creditors of the deceased (an unregistered renunciation would not be correctly opposed to them). In practical terms, one can turn to a lawyer in Italy by sending an authenticated copy of the act performed at the consulate and signing a professional mandate, without the need, in this case, for a notarial power of attorney.
Conclusion
If you need to file the declaration of succession and carry out the necessary preliminary activities, seek technical advice, or get further detailed explanations about your case, we offer, through our channels, legal advice from our specialized Italian inheritance lawyers.
