The Italian inheritance law is based on the last will of the deceased, regardless of the movable or immovable nature of the property, making the heirs succeed jointly to the estate on both assets and liabilities in equal portions, unless otherwise provided for in the testament.
The latter circumstance constitutes the main difference between heirs and legatees, who do not succeed into the testator’s assets, but are assigned specific assets without responding for claims by testator’s creditors, apart from the case of a mortgage existing on the asset.
The succession process starts at the testator’s death and it is completed with the formal devolution of the assets.
The opening of succession and the overall procedure is normally run by a Public Notary, who will ascertain the validity of the testament and the respect of mandatory provisions and public policy (e.g. legitimate portions, capacity to succeed and become heir, absence of pacts of succession, prohibition of disinheritance, et al.).
Once interpreted the deceased’s wills, the notary will then allocate the portions of the asset. In case of intestate succession, the law sets the criteria for intestacy and apportionment. In addition to the notary, public officials are vested of the authority to carry out the formalities imposed by the law.
Main Provisions on the Law of Succession
- Reserved portions: They are determined by the law. The people entitled to reserved portions are the spouse, children, remoter issue, parents and forebears. The only difference is that spouse’s rights will apply unless the order of separation was not rendered as result of fault or criminal conduct against the deceased, in which case these rights may be reduced by the court. Rules on reserved portions may not be circumvented in any way and the law provides for ad hoc remedies in the event of their violation or disinheritance, which mainly dispose the reduction of the legacies and apportionments. Once reduction is accorded, the court will follow the order set out by the law or testator’s elected order of reductions. Legacies and donations form part of the total estate on which the reductions are effectuated.
- Testamentary Capacity: any person born at the time of death or conceived 300 days before birth, although the law does not prohibit the testator to devolve assets to unborn child(-ren) of a person living at the time of testator’s death. Incapable to succeed are people convicted of crimes against testator’s person or siblings, destruction, alteration or concealment of testament as well as using a false testament. Minors may accept inheritance upon consent of the magistrate of juvenile court and only for reaching majority.
- Witnesses, notary receiving the testament and the person writing the secret testament are disqualified from succession. Private entities may only inherit via inventory. Unincorporated entities may benefit of testament devolution where the application for incorporation is submitted within one year from the opening of succession. Dispositions in favour of the poor are considered as made to the local welfare authorities.
The Inventory and its Effects Against Claims by the Deceased’s Creditors
It is not rare to see debts still outstanding at testator’s death or encumbrances persisting on the estate. With a view to favour succession, the Italian legislation on probate grants the heir a remedy to accept the inheritance bequeathed, or assigned by law in intestate succession, within the limit of the available asset, thus avoiding asset merging and consequently being subject to claims by deceased’s creditors. Such remedy is the acceptance with benefit of inventory (Articles 484 et seq.). The inventory is a system created by the Romans which permitted the heirs to accept inheritance avoiding responsibility for liabilities which rapidly spread through European legal systems and is present in most probate law systems in Europe.
The aim secured by the recourse to inventory is the separation between heir’s asset and the deceased’s one, being the latter one the sole seized or liquidated to satisfy creditors claims against the deceased. The ratio lies on the fact that the creditors were already aware of the de cuius’s economic situation while still being alive.
The inventory is a detailed and complete list of the deceased’s estate. All goods, possessions, credits and debts still present form part of the inventory, which must be made by three months from the opening of the succession (i.e. at the time of testator’s death) if the heir has taken possession of the deceased’s asset, otherwise the remedy is deemed waived. In the opposite case of the heir not enjoying the asset the inventory may be formed within ten years from the deceased’s death, unless the heir takes possession of the asset in the meantime, hence the three month deadline for the inventory shall apply. The deadline may be extended by tribunal decree when the inventory may not reasonably be made in time.
The obvious reason why the inventory must be accurate is to avoid abuses: the typical sanction for an inaccurate, fraudulent or non-existent inventory is the merging of both assets and therefore the possibility of creditors to attack the heir’s asset as a whole, with the heir responding of all credits with no limitation. In addition, false declarations may trigger a civil or criminal investigation.
The inventory may also be made by the notary or a judicial clerk upon request of heirs and beneficiaries. The request for an inventory is filed to the Family and Probate Section (Volontaria Giurisdizione) by anyone claiming the status of heir. The request must contain the names of heirs and beneficiaries, the death certificate of the person deceased and a certified copy of the testament, if existent.
Concerning intestate succession, Italian law entitles on intestacy the spouse, the issue, ascendants, closer relatives and, lastly, the State. The law provides for the right to succeed and the determines the actual portions in the various cases. When only one person falls within the intestacy, that person will be granted the whole estate. The separated spouse has the same rights unless the separation was caused by a faulty behaviour.
Administrative Procedures On Death
In order to succeed, the heir(s) must prove their own right or status. The quality of heir is proved by a act of notoriety, alternatively, the heir may render a sworn declaration in presence of either the notary and two witnesses or the competent public authority.
In case of testate succession, the heir must present the holograph to the notary for publication and registration, which is executed in presence of two witnesses. A testament made in the form of public deed is automatically published at the opening of the succession, but the notary must give a copy to the court registry and notify the heir(s) and legatee(s). Foreign wills must be legalised by the Italian Consulate and officially translated into Italian. For bank accounts a grant of administration, legalised and translated may suffice.
International Aspects Of The Italian Law on Probate
Law no. 218/1995 governs successions in case of an asset partitioned and located in different countries, or in case of a foreign will or testator’s foreign citizenship. Foreign law shall apply by virtue of the renvoi introduced by Article 13(1), and therefore govern all aspects of succession, except the forms of testament as Italian rules in this respect are mandatory. Article 15 permits to construe the law according to the rules of the country of origin. The renvoi may be excluded by the testator with a specific provision electing the domestic law of the foreign state as the only applicable. Article 46 determines the applicable law as the testator’s national law at time of death, being this the main governing factor, although not exclusive, in succession. Where the heir is an Italian national, under Italian law the foreign law may not prejudice the rights of next of kin. Regarding movable and immovable property the lex rei sitae does not apply to succession, unless the foreign will establishes rights of ownership not contemplated by Italian law. In case of intestate succession, if the deceased was an Italian national, the Italian law shall be the only one applicable.
The applicable law to forms of wills shall be either the one where the deed was written, the law governing its substance, the testator’s national law, or country of residence or place of affairs at time of death.
Italy is party to the Washington International Will Treaty after ratification of the Convention in 1990, thus a will is recognised as formally valid when signed and acknowledged before two witnesses and authenticated by a third person qualified to confer the will legal certainty of its origin.
In EU-wide succession procedure, Regulation 650/2012 entered into force on 17 august 2015 regulates multiple aspects of testaments and assets located in EU Member States. The main governing factor is the habitual residency of the testator, which is determined in the way resulting from the plain wording of Recital 23 of the Preamble. Regulation 650/2012 introduced new rules on jurisdiction, applicable law, recognition and enforcement of acts in matters of succession. It also established the European Certificate of Succession.
- In accordance with Articles 21, p. 1, and 4, the law applicable to the inheritance is the one of the State in which the deceased had his own habitual residence, ensuring the coincidence between the forum and applicable legislation, this is a brand new connecting factor for inheritance law, which traditionally applied the testator’s citizenship at time of death. Habitual residence focuses on the law of a country where the de cuius had lived for a significant period of time; it is, generally, the place where he had established the centre of business, his personal life and property, with the first ones seeming to have priority over the others.
- Article 34 of the Regulation grants universal application of the Regulation, so it will prevail over any other law which is, in fact, applicable (even that of a non-EU country) and govern the entire inheritance process regardless of actual location of the assets. However, a possible conflict of jurisdiction may occur by virtue of the so-called Referral, which renders the place where the immovable goods are situated (fourm rei sitae) the connecting factor and so applicable law in relation to the succession to immovable goods, posing the old issue of the application of as many laws as the countries in which the properties are situated.
- Article 22 of the Regulation introduces the exception clause or optio legis, that allows the testator to elect the law that will govern the succession of all the estate regardless of the actual assets’ location by an express declaration to elect the law of his country of citizenship. In the case the testator’s global asset is located in multiple countries, then the choice of the law governing the whole inheritance may be made freely, among one of the countries where the one of the property is located. The choice must be express, by declaration in the form of a clause in the testament or, at least, unequivocal. The Regulation, in effect, doesn’t exclude the provision of an implied term regulating the applicable law but it must be unequivocal and in accordance with the provisions of testator’s country of citizenship.
- The Regulation created the European Certificate of Succession. It can be requested by an heir, a legatee, an executor or administrator to a judicial Authority, or other authorities having jurisdiction to prove their status. It dispenses the holder from the need to undertake any other special procedure. The European Succession Certificate has six-months validity and it doesn’t replace the national certificates but complements them, although it shall be granted prevalence in case of conflict.
On a last note, UK, Ireland and Denmark chose to opt out of the Regulation to keep their own national rules, therefore the process of applicable law and asset partition may not be straightforward.