WHO CAN MAKE AN ITALIAN WILL?

A person who is

• at least 18 years old;
• the legal owner of the 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?……

Although, in general, Italy will recognise as valid an International will, it is generally recommended that a foreigner makes a will in Italy if they are  living permanently in Italy, especially if they expect to maintain that status until the time of their death if they own immovable property (house, apartment  land) in Italy.

The main reason for making an Italian will is to simplify the administration of the estate after death.

If your assets are all in Italy then it will ease the administration of the estate if you prepare a will under Italian law.  If you have assets also outside Italy, it will generally ease the administration in each country to have two wills one for each country.  It is important that, in order to avoid the potential for conflict, the two acknowledge the presence of the other (or at least are stated to deal only with the property in each jurisdiction.)  However each case needs to be examined individually.

………AND WHY?

Heirs of a will drawn up under foreign law 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 will need to examine the foreign will with regard to the Italian assets, resolve any conflicts between  foreign and Italian law, as well as advising heirs and/or preparing suitable documentation to transfer the assets. Foreign wills tend to be complicated by the setting up of trusts, reference to foreign statute and third party regulations (such as the estate management  rules published by associations of trust and estate practitioners.   

The costs of translation of all documents in the English language into  Italian may be steep and may well be more than the cost of making an Italian will.

In terms of inheritance tax a will under foreign law may well keep you within the inheritance tax of the foreign country. Italian inheritance tax rates and thresholds are typically more generous than in other countries (see INHERITANCE TAX CHAPTER). This in practice means that the small / medium Estates are not subject to Inheritance tax in Italy.

IS A WILL NECESSARY AT ALL?

According to Article 457 of the Civil Code, inheritance is devolved by law or by will. If there is no will, the Italian Civil Code sets out who is entitled to the estate in a specific order based on the degree of kinship with the deceased. Under these rules the estate devolves to the spouse, descendants, ascendants, collaterals (siblings), other relatives and the State, in the order and according to the rules established by law.

CAN I MAKE A WILL UNDER ITALIAN LAW LEAVING THE PROPERTY TO ANYONE I LIKE?

The answer to this is fundamentally “yes” except that certain heirs are entitled by law to take a share of the estate in certain circumstances and will thus have the right to challenge the inheritance, if their rights under Italian law have not been respected.  These rules do however allow someone to freely dispose of a set part of their estate – this is called the freely devolvable share.  Leaving your estate by to someone other than a legitimate beneficiary above the limit of the freely devolvable share, means that there is a risk that the legitimate  can challenge, seeking either financial compensation or indeed that the transfer of an asset comprised in the estate  to a non legitimate beneficiary in the will is set aside.

WHAT ARE THE DIFFERENT WAYS OF MAKING A WILL?

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

• Handwritten Will (Holographic will – Testamento Olografo)

This document:

• is personally handwritten by the person making the Will (Testator),
• is dated (the most recent will in the event of several wills executed over time will generally be the valid will
• 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.

• 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. As a formal document ,and will not be lost / disregarded. 
• involves a cost (notarial fees);
• can be disclosed to a third party, because it is public will, not secret.

• 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 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

1.Handwritten Will (Holographic will – Testamento Olografo

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

2. 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, so it better to find out one English speaking. Generally the witnesses requested are elected by the notary between his clerks.

• Secret will (testamento segreto) 

As para 2 above – see above 

It is better to have legal advise by a lawyer dealing with the two jurisdictions. Wills and probate matters involve taxation issues. For complex estates or where there are cross border aspects it is generally better to seek assistance from an Italian lawyer for the preparation of the will. the lawyer will be able to introduce and coordinate other professionals (notary, accountant, geometra) as necessary. 

If you have chosen to make a Testamento pubblico, the Notary Public will be able to draft the will according your instructions. Not all Notaries are able to dealing with two or more jurisdictions, as the Testamento Pubblico involves only Italian legislation.

HOW LONG DOES IT TAKE?

It is not a lengthy procedure, It is important to prepare all documents accurately. Contact an Italian professional (lawyer or Notaio) with a clear outline of what you want the will to contain, names and addresses of beneficiaries and specific legacies, Avoid changing your mind, if possible, as this will introduce extra expense – you can always change your will up to the time of death, if you remain of sound mind, but if you are in good health why drive 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, the heirs (or one of them) or administrators/executors, if appointed by the will, must ascertain what kind of will the testator made, or proceed on the basis of the statutory rules dividing the estate in the absence of a will..

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 12 months from the date of death. Penalties for late presentation apply ragning from Euro 150 if no tax is due up to 120% of any tax due.  The Declaration involves the completion of a form in which all the assets must be shown with the relevant values (as calculated under inheritance tax rules).   The form should be filed (generally online) with the appropriate Tax Agency office.  This will be the area office covering the municipality, the town where the deceased was resident at the time of death. If the deceased was not resident in Italy, the declaration of succession must be presented to the relevant Tax Office in Rome.

Finally, the Notary will be able to complete the procedure by registering the transfer of any real estate into the names of the new owners at the Land Registry (Catasto). Registration taxes will apply, calculated on the value of the assets as well as stamp duties and notarial fees.

ITALIAN INHERITANCE TAX

The heirs (or administrators) of the Estate will be requested to pay any Inheritance Tax due when they present the Declaration of Succession to the competent office.

Italian Inheritance Tax is currently levied at three different flat rates, by reference to the entitlement under the will or succession, as follows:

• 4% where the Estate or part of the Estate devolves to the Deceased’s spouse or children, with a nil rate band up to a maximum of  € 1,000,000 (the “Franchigia”) each for the spouse and each of the children;
• Where all or part of the Estate or part of the Estate devolves to one or more disabled children, the Franchigia is increased to Euro 1,500,000 (£ 986,800 at the current rate of exchange);
• 6% where the Estate or part of the Estate devolves to brothers or sisters (subject to an exempt Francogia of Euro 100,000 each);
• 6% where all or any part of the estate devolves to other relatives of the Deceased up to the 4th degree (without any “Franchigia”);
• 8% where all or part of the Estate devolves to unrelated parties. 

The basis for the inheritance is subject to a number of rules.  The calculation of the taxable involves taking the value of all the assets of the deceased and subtracting any liabilities (debts)  and medical expenses (up to a little over Euro 1,000) paid in the six months before death. 

Not all assets need to be included. Those that may be excluded are: 

government securities,

certain debt claims against the State that have not yet been recognised as subsisting by order of the debtor public entity;

claims asserted in a court of law but not yet defined by a court judgment;

movable property registered in the Public Register of Motor Vehicles;

severance pay and employment benefits;

cultural assets subject to a restriction such as assets of architectural, historical or cultural value.

certain interests in companies, businesses in favour of spouses and heirs in the direct line 

certain life insurance payments on death

Where the  heir is an ecclesiastical or religious entity, or Italian charity (onlus) no inheritance tax is due.

Avv. Carlo Bottino

Tags: | Categorie: ITALIAN PROPERTIES, ITALIAN TAXATION, SUCCESSION AND PROBATE, TAX PLANNING