In Italy there is common saying when anyone earn a lot of money: he probably inherited from his American uncle !In the common practice it can often happen on the contrary. There a lot of Americans or Australians who had distant relatives in Italy without any other heirs except them.

What should the lucky American do in this case?

1) check the Italian estate in the public registry

2) check if there is a will left to a Notary to be published.

3) check if there are bank accounts payble to the deceased

In Italy it si not common to have an executor or an administrator of the deceased’s estate. It happened only in few cases regulated by the law.

Anyone interested generally, instead, can draft a public form and make a statement called “dichiarazione di successione” to be sent to the public registry for pay the inheritance taxes, cash money and transfer the property of the real estate.

How can anyone living in Usa, Australia or in other country far from Italy, manage all these issues and cash the inheritance without moving from home?

The best way is to appoint an Italian lawyer and give him a general power of attorney (Procura generale per atti successori). This document can be signed in front of a Italian Authority (Consulate, Embassy) and allowed tha lawyer appointed in Italy to make all the necessary like

  • POWER OF ADMINISTRATION – Make any act of administration, with full powers, including: a) Have access to any safe deposit box that I might own, including its contents , get licenses, assets and money, either as interests or as capital and any other means, give a receipt, remit any guarantee against payment of the guaranteed debt; b) Open, maintain or close bank accounts (including, but not limited to, checking accounts, savings accounts, and certificates of deposit), brokerage accounts, and other similar accounts with financial institutions. c) rent any safe deposit box, exercise all relating rights, d) Sell, exchange, buy, invest, or reinvest securities, equities and bonds and securities listed on any stock exchange, e) Convey, lease, mortgage, manage, insure, improve, repair, or perform any other act with respect to any of my property (now owned or later acquired) including, but not limited to, real estate and real estate rights, all the terms and conditions that the prosecutor considers appropriate, f) attend at meetings of companies, associations and unions, exercising any concerning right include voting and signing the statements g) represent me before insurance companies, take out, sign and/or maintain insurance policies or give notice of termination of them, h) represent me before all public authorities and in particular before the administration of Post and all tax offices. Make applications, pay taxes, make judicial and administrative complaints and claims.. Ask for deferrment of payment, guarantee the refund of loan and allow any registration on the land registry including any entries and/or charges. ;
  • MAKE DISPOSITIONS a) purchase, sell and exchange properties vessels, companies, stocks and bonds, even unlisted, moveable property, material and incorporeal, without exception, credits of any kind, inheritance rights and in general any assets, fixing the prices , establishing covenants and conditions which the agent deems appropriate; cash money and chequees , give receipts, exempt from the registration of the loan, even if compulsory b) redeem mortgages, guarantees and in general securities, even without the payment of the debt secured, allow to subrogate.
  • MAKE DIVISION OF PROPERTIES- make calculations, liquidations, divisions, whether settled or judicially; accept lots on behalf of the client, with or without adjustment, exempt from the registration of the loan, even if compulsory
  • LEGAL ACTION Take legal action – represent the client in court, either as an actor or as a defendant, appoint attorneys and lawyers, claim acts of procedure and enforcement measures, settle the case.

MISCELLANEOUS PROVISIONS -For purposes of the above, approve and sign papers and documents, make applications to record in public registries, make declarations on taxes, under the law 02/28/1985 n. 47 and subsequent amendments , on agent’s tax regulations; take up residences in a place, be substitute by others and generally do all it is thought necessary.

Once signed this documents the lucky American can sleep between two pillows and wait for cash money from Italy (all the taxes will be paid in Italy by the attorney).

Avv. Carlo Bottino – Lawyer in Milan – Founder of Angloitalianlaw

Published also

http://www.italianlawfirm.co.uk/consulenze-legali/how-to-inherit-f…ur-italian-uncle/

https://www.angloinfo.com/how-to/italy/money/pensions-wills/inheritance-law

 

 

If a custodial parent desires to relocate outside Italy despite the other parent’s wishes, such a move could constitute parental kidnapping.
If a court order exists regarding shared custody (affidamento condiviso), the dissenting parent may be able to use the custody order to compel enforcement of parental kidnapping laws.
If a parent relocates to a Country that has signed the Hague Convention on the Civil Aspects of International Child Abduction, Italy, as a signatory to the convention, may be able to help bring about the child’s return to our s Country.
But what if a parent has “full custody” -a.k.a. affidamento esclusivo over the children- when the other parent dissents on the move abroad? The non-custodial parent will likely have court-ordered visitation rights, that’s clear: but is the move abroad of the Custodial Parent (affidamento esclusivo) still illegal?
The Italian Supreme Court (see http://www.iussit.com/separazione-affido-condiviso-figli-residenze-distanza-notevole) has many times asserted that -in case of affidamento esclusivo (sole custody)- moving abroad with the children is a legitimate decision which falls in the range of powers pertaining to the Custodial Parent.
However the non-custodial parent may still apply with the Hague Convention when his/her visitation rights are hindered, because of the distance or otherwise.
In conclusion, a return order cannot be issued against you if you are the (sole) custodial parent, but your ex can put you seriously in trouble for a good while.
As an aside, procedures have been established for passport issuance intended to prevent parental child kidnapping across international borders. Generally, both parents must sign the passport application for a child under the age of 16. However, if one spouse has a court order establishing sole custody, passport issuance may not require the other parent’s signature.
So, even if you are a parent with full custody rights you’d better consult with a family law attorney to discuss the specific rights and requirements of the court’s custody order. A good parenting plan approved by the Court may settle all these issues in advance, and collaborative law is probably the bast way to get at it.
Avv. Marco Calabrese, avvocato collaborative lawyer Rome, Italy founder of Angloitalianlaw

The Italian legal system, based upon the Civil Law, is characterised by a very high number of laws and a significant variety of grounds for appeal.

It is important to stress that legal proceedings, both civil and criminal, generally last many years.

The necessary legal proceedings are time consuming and will therefore have a direct effect on the process of the debt collection.

Debt collection in Italy requires a title which enables the creditor to commence execution of proceedings. Such titles may be, inter alia, a sentence, a cheque or a bill (of Exchange).

In order to allow the creditor to collect his credit within a relatively short period of time, the Italian Legislator has fixed a short proceeding – which usually lasts a few months – and is followed by a payment injunction issued by the Court which orders the debt to be paid, in addition to interest as well as part of the legal expenses.

In order to obtain the Court’s injunction (Decreto Ingiuntivo), the creditor should provide the Judge with written evidence regarding the debt’s existence: the creditor should, in other words, prove that the goods or the service have been regularly supplied/rendered to the debtor.

When the creditor is a professional, an entrepreneur or a company, the evidence required may also be provided in the form of a copy of the invoices, especially when the debt is related to services rendered.

Starting from the day in which the payment injunction has been formally served to him, the debtor may oppose it within a period of 40 days.

Where no such opposition has been made, the creditor may commence proceedings for the execution of the injunction.

Alternatively should, for any reason, the debtor decide to appeal, a “regular trial” takes place. The main issues discussed in such a trial are the legitimacy of the order (mainly formal aspects), the existence of the debt and whether it is collectable.

It is worthwhile to point out that in order to discourage debtors from filing groundless appeals, having as a unique scope the postponement of payment, the Italian law provides a remedy which seems to be quite efficient: in case the appeal is not based on relevant circumstances proved in writing which have occurred prior to the payment injunction (for example, a written complaint regarding the quality of goods/services), the Court may authorise the creditor to collect his credit without having to attend the end of the trial.

Other titles which enable a creditor to initiate execution are cheques and bills (assegno/cambiale).

In case of their dishonour, the creditor may summon the debtor to pay within 10 days while advising him/her that unless they are paid, execution proceedings shall commence.

The aforesaid proceeding is quite simple, rapid and does not require the Court’s intervention thus leaving the debtor a narrow range of possibilities on which to appeal.

Avv. Carlo Bottino – lawyer in Milano – Founder of Angloitalianlaw

Also published

http://www.studiolegalebottino.it/consulenze-legali/collect-debt-in-italy/

In recent times the idea of negotiation, which is present in almost all the human activities, evolved from the resolution of a human conflict to the concepts of conflict resolution in psychology, which were adopted by some lawyers in the beginning of ADR movement; thence some recent movements brought the concept of negotiation towards a “holistic” concept of conflict resolution where the subject to be healed is not the conflict though the person. Oftentimes these legal studies have also a spiritual approach background (mainly derived from yoga techniques).

§ Foreword

 In the unfortunate event that you find yourself in a cross border dispute with a person/body in another EU member state, consideration should immediately be given to the Courts in which the dispute can be heard and which Court would be more preferable.

Some European rules may in fact contribute to fuelling the so called “Race to Courts”

 EU law sets out the rules on jurisdiction to assess which Courts have jurisdiction over a dispute and importantly, gives priority to courts that are ‘first seized’.

Nearly the same happens between Countries non regulated by the EU law: the Court which first receives the claim has -generally speaking- priority over all other courts. If there is any challenge to the jurisdiction the court first seized decides on whether to hear the claim or refer it to another court (the difference is what follows: in EU Law the first seized has priority, full stop, in all other cases the first seized can decide -to a certain extent who will hear the case). This certainly happens for the relations between European Countries and U.S.A who fully abide with this rule.

Now, imagine that this unfortunate situation happens in the very unlucky event of a family law dispute, or even (God forbid) in the event of a child custody case.

To make things worse, imagine that you became a negotiatior, a mediator or a collaborative lawyer many years ago, and don’t trust anymore in Justice as Administered by the Courts, because “No one is righteous–not even one” Romans 3:10 (this sense of disenchantment generally takes 20/25 years of legal practice to appear).

How to reconcile the Race To Courts with the Principles of Negotiation, Collaborative Law and Family Mediation?

As you may know in Collaborative Practice each party must be represented by a lawyer whose representation terminates upon the undertaking of any contested court proceeding. A “good” Negotiator or Collaborative lawyer, should never seize jurisdiction first. But if you never shoot first you are very likely to lose jurisdiction. The same may apply to a Mediator-Lawyer, whose deep belief is to avoid the recourse to Courts at all costs.

***

Along the years, I have heard this riddle solved by the funniest ideas of collaborative practitioners and mediators from throughout the world.

IDEA #1Shoot first, then withdraw. An outstanding Collaborative Lawyer from London came up to me with this idea. Which is not very productive tough. You’d be clashing against the principles of Collaborative Practice by sueing first (morally you’re a coward) only to lose your Client immediately after (so you’re also a failure)

IDEA #2Stop taking international cases. This may be a very brilliant idea, though not in the case in which your practice -like mine- is mainly composed by international cases. In fact, by doing so, you can as well go fishing and close yout office.

IDEA #3. Shoot first, and remain in place. This is not acceptable for a negotiator: as any Collaborative/Mediator knows, you don’t stand the ghost of a chance to be trusted as a Collaborative Lawyer when you participate into this crazy race. And you’re not a mediator if you take sides.

IDEA #4. Don’t get retained if you can’t avoid the fight

And so on….

The number of cross border exchanges as well as that of international families is growing each year, so probably a collaborative/mediation filter is needed for these matters, where the “shoot first rule” is mostly inappropriate. Of course this “filter” cannot be imposed on a voluntary basis but it needs to be issued by International Bodies.

In the absence of any regulation should we say that the Collaborative Law, Negotiation and Mediation are only appropriate on a local, simpler, basis?

§ ONE: DEFINITIONS

However, what is Negotiation? And before that, who is a negotiator?

Negotiation can be defined as a bargaining (give and take) process between two or more parties (each with its own aims, needs, and viewpoints) seeking to discover a common ground and reach an agreement to settle a matter of mutual concern or resolve a conflict.

Effective negotiators must have the skills to analyze a problem to determine the interests of each party in the negotiation. A detailed problem analysis identifies the issue, the interested parties and the outcome goals.

Before entering a bargaining meeting, the skilled negotiator prepares for the meeting. Preparation includes determining goals, areas for trade and alternatives to the stated goals. In addition, negotiators study the history of the relationship between the two parties and past negotiations to find areas of agreement and common goals. Past precedents and outcomes can set the tone for current negotiations.

Negotiators have the skills to listen actively to the other party during the debate. “Active listening” involves the ability to read body language as well as verbal communication. It is important to listen to the other party to find areas for compromise during the meeting. Instead of spending the bulk of the time in negotiation expounding the virtues of his viewpoint, the skilled negotiator will spend more time listening to the other party.

It is vital that a negotiator have the ability to keep his emotions in check during the negotiation. While a negotiation on contentious issues can be frustrating, allowing emotions to take control during the meeting can lead to unfavorable results.

Negotiators must have the ability to communicate clearly and effectively to the other side during the negotiation. Misunderstandings can occur if the negotiator does not state his case clearly. During a bargaining meeting, an effective negotiator must have the skills to state his desired outcome as well as his reasoning.

Negotiation is not necessarily a one side against another arrangement. Effective negotiators must have the skills to work together as a team and foster a collaborative atmosphere during negotiations. Those involved in a negotiation on both sides of the issue must work together to reach an agreeable solution.

Individuals with negotiation skills have the ability to seek a variety of solutions to problems. Instead of focusing on his ultimate goal for the negotiation, the individual with skills can focus on solving the problem, which may be a breakdown in communication, to benefit both sides of the issue.

Leaders with negotiation skills have the ability to act decisively during a negotiation. It may be necessary during a bargaining arrangement to agree to a compromise quickly to end a stalemate.

Effective negotiators have the interpersonal skills to maintain a good working relationship with those involved in the negotiation. Negotiators with patience and the ability to persuade others without using manipulation can maintain a positive atmosphere during a difficult negotiation.

Ethical standards and reliability in an effective negotiator promote a trusting environment for negotiations. Both sides in a negotiation must trust that the other party will follow through on promises and agreements. A negotiator must have the skills to execute on his promises.

§ TWO WHAT IS THE (ALTERNATIVE) CONFLICT RESOLUTION?

I have recently begun to cooperate more strictly with the Person Centred Approach Institute in Italy, named IACP- istituto per l’approccio centrato sulla persona. founded by Carl Rogers, Alberto Zucconi and.Charles Devonshire.

The Person-Centred Approach was developed from the work of the psychologist Dr. Carl Rogers (1902 – 1987). He advanced an approach to psychotherapy and counselling that, at the time (1940s – 1960s), was considered extremely radical if not revolutionaryAn important part of this theory is that in a particular psychological environment, the fulfilment of personal potentials includes sociability, the need to be with other human beings and a desire to know and be known by other people. It also includes being open to experience, being trusting and trustworthy, being curious about the world, being creative and compassionate. The psychological environment described by Rogers was one where a person felt free from threat, both physically and psychologically. This environment could be achieved when being in a relationship with a person who was deeply understanding (empathic), accepting (having unconditional positive regard) and genuine (congruent).

Although initially developed as an approach to psychotherapy (eventually becoming known as client/person-centred therapy/counselling), Rogers and his colleagues came to believe that their ideas could be transferred to other areas where people were in relationships. For example teaching, management, childcare, patient care, conflict resolution.

Conflict resolution is conceptualized as the methods and processes involved in facilitating the peaceful ending of conflict and retribution. Committed group members attempt to resolve group conflicts by actively communicating information about their conflicting motives or ideologies to the rest of the group (e.g., intentions; reasons for holding certain beliefs), and by engaging in collective negotiation.

§ THREE: THE EVOLUTION OF CONFLICT RESOLUTION

Although clearly deriving from the psychology, conflict resolution has become very popular in the studies of law, during the last thirty years.

Until the end of XX Century the best known practices for resolving a dispute were the following:

1. Mediation

The goal of mediation is for a neutral third party to help disputants come to consensus on their own.

  • Rather than imposing a solution, a professional mediator works with the conflicting sides to explore the interests underlying their positions.

Mediation can be effective at allowing parties to vent their feelings and fully explore their grievances.

Working with parties together and sometimes separately, mediators try to help them hammer out a resolution that is sustainable, voluntary, and nonbinding.

2. Arbitration

In arbitration, a neutral third party serves as a judge who is responsible for resolving the dispute.

  • The arbitrator listens as each side argues its case and presents relevant evidence, then renders a binding decision.

The disputants can negotiate virtually any aspect of the arbitration process, including whether lawyers will be present and which standards of evidence will be used.

Arbitrators hand down decisions that are usually confidential and that cannot be appealed.

Like mediation, arbitration tends to be much less expensive than litigation.

3. Litigation

The most familiar type of dispute resolution, civil litigation typically involves a defendant facing off against a plaintiff before either a judge or a judge and jury.

  • The judge or the jury is responsible for weighing the evidence and making a ruling. Information conveyed in hearings and trials usually enters the public record.

Lawyers typically dominate litigation, which often ends in a settlement agreement during the pretrial period of discovery and preparation.

+++

More recently, other forms of Dispute resolution have raised the attention of the public. Particularly:

4. Collaborative Process

As part of the collaborative law method, both parties retain separate attorneys whose job it is to help them settle the dispute. No one may go to court. If that should occur, the collaborative law process terminates and both attorneys are disqualified from any further involvement in the case.

Each party in the Collaborative law process signs a contractual agreement which include the following terms:

–        Each party agrees to honestly and openly disclose all documents and information relating to the issues. Neither party may take advantage of a miscalculation or an inadvertent mistake. Instead, such errors are identified and corrected.

–        Each party agrees to act respectfully and avoid disparaging or vilifying any of the participants.

–        The parties agree to implement outside experts where necessary in a cooperative fashion and share the costs related to those experts. (e.g. real estate appraisers, business appraisers, vocational evaluators, or accountants)

–        The primary goal of the process is to work toward an amicable solution and to create a “win-win” situation for all.

–        Neither party may seek or threaten court action to resolve disputes. If the parties decide to go to court, the attorneys must withdraw and the process begins anew in the court system.

One of the biggest differences in the Collaborative law process is that it recognizes that emotional issues exist that cannot be addressed by the legal system. These emotional issues are ignored in the Court process. By contrast, the collaborative law process specifically addresses these issues by bringing them to the forefront and using professionals as part of team approach to find solutions.

Another significant difference (particularly vs Mediation) is that both parties are assisted by their lawyers. Nobody has the impression to “fight alone”.

Basically no other forms of dispute resolution can be imagined.

§ FOUR: HOW DOES NEGOTIATION FIT IN THE SYSTEM OF CONFLICT RESOLUTION?

Basically any form of Dispute Resolution involves a Neutral (Arbitration, Mediation, Litigation) or two parties (assisted by lawyers) who negotiate without the help of a Neutral.

Alternative Dispute Resolution Methods all involve a certain dose of negotiation, that may be present also in adjudicational processes (i.e. the negotiation aiming at a settlement in Court).

In fact, negotiation can be defined as any form of direct or indirect communication whereby parties who have opposing interests discuss the form of any joint action which they might take to manage and ultimately resolve the dispute between them. Negotiations may be used to resolve an already-existing problem or to lay the groundwork for a future relationship between two or more parties.

Negotiation has also been characterized (by S.G. Goldberg; E.A. Frank; N.H. Rogers; Dispute Resolution: Negotiation, Mediation, and Other Processes, (Boston: Little, Brown and Company 1992) as the preeminent mode of dispute resolution, which is hardly surprising given its presence in virtually all aspects of everyday life, whether at the individual, institutional, national or global levels. Each negotiation is unique, differing from one another in terms of subject matter, the number of participants and the process used.

Given the presence of negotiation in daily life, it is not surprising to find that negotiation can also be applied within the context of other dispute resolution processes, such as mediation and litigation settlement conferences.

Negotiation is:

  • Voluntary: No party is forced to participate in a negotiation. The parties are free to accept or reject the outcome of negotiations and can withdraw at any point during the process. Parties may participate directly in the negotiations or they may choose to be represented by someone else, such as a family member, friend, a lawyer or other professional.
  • Bilateral/Multilateral: Negotiations can involve two, three or dozens of parties. They can range from two individuals seeking to agree on the sale of a house to negotiations involving diplomats from dozens of States (e.g., World Trade Organization (WTO)).
  • Non-adjudicative: Negotiation involves only the parties. The outcome of a negotiation is reached by the parties together without recourse to a third-party neutral.
  • Informal: There are no prescribed rules in negotiation. The parties are free to adopt whatever rules they choose, if any. Generally they will agree on issues such as the subject matter, timing and location of negotiations. Further matters such as confidentiality, the number of negotiating sessions the parties commit to, and which documents may be used, can also be addressed.
  • Confidential: The parties have the option of negotiating publicly or privately. In the government context, negotiations would be subject to the criteria governing disclosure .
  • Flexible: The scope of a negotiation depends on the choice of the parties. The parties can determine not only the topic or the topics that will be the subject of the negotiations, but also whether they will adopt a positional-based bargaining approach or an interest-based approach.

§ FIVE: DISTRIBUTIVE VS INTEGRATIVE NEGOTIATION.

There are two main approaches to any negotiation situation: distributive and integrative strategies. Each are useful in specific contexts, and the same negotiator may use either strategy depending upon their goal. We encounter distributive negotiation every time we buy a car or ask for a discount on an as-is item. Integrative negotiations happen on an ongoing basis, such as agreeing to let our children go to bed an hour later in exchange for washing the dishes.

Distributive Basics

Distributive negotiation is appropriate in “divide the pie” situations, when there is a fixed amount of resources and whatever one party gains, the other party loses. Usually it’s employed when the parties don’t know each other and don’t believe they will need to develop a relationship with each other for use in the future. A distributive approach to negotiation is usually what we encounter when we make a purchase.

Distributive Tactics

In distributive bargaining, it’s best to keep information to yourself while trying to get information out of the other party. Let them make the first offer, since this lets you know what they’re willing to give up. Do tell them about alternatives you have, such as competing offers for what you’re selling, or interest in a product that competes with the one they’re selling if you’re the buyer. But be willing to make concessions in order to reach a realistic outcome.

Integrative Basics

An integrative bargaining situation occurs when it’s possible to produce a greater outcome together than either could reach on his own. It’s used when the parties have a relationship or want to establish one, and when cooperation benefits both parties. There are often multiple issues to address, and the negotiations can be complex and ongoing. Most of us use integrative bargaining within our families and between business partners.

Integrative Tactics

Determine your list of priorities, and make a guess about the other party’s priorities as well. Share information with each other, being honest about your priorities; often something critical to one side is a minor concession to the other, and vice versa. Find and offer solutions that produce the most gain for the other party as well as for yourself. Remember that you will be in other negotiation situations with the other side in the future, and be willing to compromise when needed to build goodwill for later.

§ VI: AN INTEGRATIVE APPROACH TO NEGOTIATION

As JKim Wright says

(http://jkimwright.com/?lipi=urn%3Ali%3Apage%3Ad_flagship3_messaging%3BqIGPTs6aSwCOyZHI2xGkww%3D%3D)

“At the heart of the integrative law movement, is a shift in law from a system that focuses on differences and separation to a system that includes and honors the opinions, perspectives and humanity of all stakeholders. Integrative law takes a broader view of stakeholders to acknowledge that legal problems and controversies do not arise in a vacuum but are part of complex, inter-related systems. Integrative Law offers practices that allow stakeholders to address the conditions that give rise to conflict and to engage conflict, once it does arise, in a way that restores community well-being and allows those directly affected by the conflict to meaningfully participate in its resolution. The models, approaches, and policy initiatives have arisen in response to a new awareness of interconnectedness.

The Integrative Law movement includes a variety of existing and emerging forms of legal practice, policy initiatives, and legal education aimed at transforming the legal system to more effectively reach its basic goals. As viewed by the integrative law movement, the basic goals of a legal system include but are not limited to providing access to justice; designing, managing, and healing relationships; and providing stable, organic, flexible structures for a just, stable and harmonious community.

The existing and emerging forms of legal practices flowing from the Integrative Law movement are known by many names and have various perspectives. The approaches share similar core values. Some of them are philosophies of law, some are models. Some are ways of being that are adaptable to any area of law practice.

Integrative law includes many models and approaches. Some people refer to the emerging models and approaches as vectors, based upon the term used in the work of law professor, Susan Daicoff. Daicoff has written extensively about what she called Comprehensive Law, identifying several lenses and five vectors of the movement. Integrative law includes Daicoff’s vectors and more, including models and philosophies such as:

collaborative law,

restorative justice,

restorative mediation,

and many others…”

“…By whatever name, each of these approaches offers support to a transformation of the legal system. Many of those engaged in them consider themselves to be indicative of the future of law practice, responsive to the rapid changes in society and a movement toward a workplace (both for lawyers and their clients) interested in personal and spiritual growth opportunities as well as vocational activities. While the approaches may sometimes seem different, and will be described in more detail below, there is a common connection of values and principles. They include the following:

  • Utilizing law as a modality for healing and helping, not only of problem resolution;
  • Focusing on the future and reconciling relationships, listening, forgiveness, completing and moving on – rather than simply looking to the past and punishing transgressions;
  • Viewing legal issues with inclusion of the existing or possible on-going relational context of the parties, or between the parties and the greater community, for purposes of improving connections rather than isolating or separating people;
  • Including preventive models, proactively identifying risks and taking actions that will prevent conflict;
  • Creating win/win/win solutions where the parties involved, the underlying community and over-arching societal values are all addressed and benefit;
  • Fashioning a better world for all that is healthy, diverse, creative, and respectful of human rights and values;
  • Including a humanistic approach to law practice that is sensitive to the needs, values, and the highest good of the client and society, and of legal practitioners;
  • Consciously constructing a law practice environment where judges, lawyers and legal staff can change and grow as authentic and honest persons;
  • Believing that the legal problems occur within a system that is an organic process which can respond to the needs of clients, society and lawyers alike;
  • Defining a legal system that is based not only on problem solving, but also supporting everyone to live and work together in peace.

Other aspects of the legal system addressed by the Integrative Law movement include

  • humanizing legal education,
  • promoting emotionally competent lawyering,
  • enhancing wisdom and compassion throughout all interactions with the legal system,
  • encouraging accountability, engagement, and restoration,
  • responding to societal changes mindfully, resolving conflicts and promoting client-centered lawyering…”

§ VII: WHAT IS THE HOLISTIC APPROACH TO CONFLICT MANAGEMENT?

Politicians and diplomats who try to resolve armed conflicts usually focus their efforts on achieving a pragmatic exchange of benefits between the warring parties. They aim for a compromise on the tangible issues in dispute, whether territory or resources or political power. Such a straightforward approach to conflict resolution is understandable, but it often fails because deeper aspects of the conflict—psychological, emotional, and spiritual dimensions—are ignored or downplayed.

At the same time, many peace movements attempting to transform violent conflicts into constructive partnerships also fail in their efforts because they focus most of their energy and rhetoric on protesting against injustices or abuses of power. This “prophetic” stance of decrying misguided policies is a natural and even necessary approach to peacemaking—but it is far from sufficient to shift the underlying dynamics in longstanding conflicts.

A more holistic approach to peacebuilding, one that takes more time but holds more promise for ultimate success, addresses various dimensions simultaneously.

Holistic services in the law sector may mean what they call ‘bundling’; the idea that a criminal client, for example, might need family or debt advice and would want to see another lawyer in the same firm. This is a perfectly reasonable approach, and we should have no concerns about developing it in our legal audience.

        For lawyers, specifically those who specialize in mediation or conflict resolution, holism means emphasizing care of the self, coupled with care for the client. Practitioners of mediation regularly deal with conflict-related situations and may have to deal with combative clients. The holistic practitioner learns how to tap into inner resources so as to combat and control the stress and fatigue that are part of the mediation process. By doing so, the mediator is able to respond to and advise the client with clarity and calm.

Again, as JKim Wright teaches “Holistic Law means many things to many people. As we use it, it is an approach or style of practice that focuses on the whole person and the whole of the problem as a way of finding more healthy and sustainable solutions to legal problems. The whole problem or picture to a Holistic Lawyer would include more stakeholders, a broader focus on the “other side” and their contribution to the problem. It often entails a look at the lawyer’s role, the client’s role in the problem and solution, and the impact of the problem and solution on the community.

 Holistic Law practitioners often look inward to become whole themselves to better assist their clients in using the legal process to find wholeness. Often holistic lawyers take a spiritual component, exploring the unity of purpose between the seemingly opposing parties. Some attorneys who practice in this style view Holistic Law as the umbrella under which other styles or approaches fit. For example, a Holistic Lawyer might take a preventive law approach or a collaborative law approach as part of their holistic legal problem-solving.”

A more comprehensive approach to the persons involved seems to be the future of every kind of legal negotiation, today.

Avv. Marco Calabrese, avvocato collaborative lawyer Rome, Italy founder of Angloitalianlaw

Also published on

https://www.linkedin.com/pulse/recent-evolutions-negotiation-marco-calabrese-attorney/

ITALIAN LAW ON CAR ACCIDENTS

According to the Italian Civil Code – articles 2043 and 2054 – any individual causing a damage has the duty to make it good and restore the victim, putting him back in the position he would have found himself if the damage had not occurred at all. In the event of a road accident involving two or more vehicles, Italian law presumes, until proven otherwise, a contributory negligence, i.e. all drivers have contributed equally to produce the collision. It is important to keep in mind that in Italy the owner of a vehicle is jointly liable with the driver, unless proved that the last one had used the vehicle against the owner’s will. Anyhow, the owner will always be the one responsible for damage resulting from construction defects or failure to maintain his own vehicle.

The Italian Civil Code identifies a distinction between patrimonial damages and non-patrimonial damages:

Patrimonial damages loss in the economic assets of the injured party directly. They can refer to “consequential damages” as immediate and direct consequence of the damage, which caused the economic loss (medical expenses, loss for victim’s goods, etc.) or to “monetary loss”, that is the reduction in incomes suffered or that will take place in the future caused by the injury to be compensated.

Non-patrimonial damages when an intentional or negligent act causes a personal injury. They are classified as “biological damages” relate to physical, mental and social damages and as “moral damages” consisting of the moral harm, anxiety, distress and offence to a person’s general well-being.

In Italy, it is mandatory for vehicles to be insured by authorized insurance companies. That means the most of the damages have a fair compensation, but many times the compensation released may not satisfy fully the damage, so claims before a court are likely to rise.

NO PHYSYCAL INJURY CASES

When the accident happens between two vehicles only and if there is no physical injury, then both parties may revert to an amicable procedure (Constatazione amichevole d’incidente) and fill in the blue document (modulo blu) of the Convention for Direct Indemnity (CID, Convenzione Indennizzo Diretto). This document is provided by the insurance company and should be kept in the car.

Included in the accident report are the following details:

Name of the people involved in the accident

Details of the insurance companies

Registration plates of the vehicles involved

Circumstances and description of the accident

Signature of both drivers

A copy of the accident report must be sent to the insurance company within three days, and the car must be kept at their disposal for an expert’s report. The insurance company then has ten days to assess the damages, and must pay within 15 days.

If the insurance company disagrees with the amount of work to be done on the car, it will pay a provision based on an estimation (offerta di risarcimento); the difference can be claimed later on.

As of 2004, the “amicable procedure” is also valid, under certain circumstances, where there have been injuries:

The vehicle in which the injured person has travelled is damaged

For each injured person, damage to the person (physical damage, moral damage, material damage and medical fees) do not exceed the amount of €15,000

PHYSICAL INJURY AND PERMANENT DISABILITY CASES

In case of serious accident the Italian Authorities (Road Traffic Police, Local Police) arrive on the scene of accident to provide help for the injured, re-establish traffic flow, gather all the necessary information about the accident and they will take note of evidences and statements from the parties to draw up a report.

In case of damages, the report will acquire particular importance to the parties, since they are entitled to request a copy of it as an evidence of their claims. Please notice, that, when injuries have occurred, the report will be released only after the 90 days necessary for the submission of a potential lawsuit for personal injury

Biological Damage

Definition: physical, mental and social damages. The most recent definition of biological damage is provided in articles 138 and 139 of the Code of the Insurances, which define this category of damage as, “the temporary or permanent injury to the reduction of psycho-physical integrity of a person, regardless of the person’s capacity to produce an income.” Biological Damage is divided into two sub-categories: temporary disability and permanent disability.

Temporary disability

the total number of days needed to recover from the accident, considering the natural capacity of the body to recover and the treatments needed to restore the original psycho-physical conditions of the victim – and it is measured in days.

If a person is unable to perform any activity –>  temporary disability is total.

If a person is unable from performing only some activities –> temporary disability is limited.

Permanent disability 

the reduction in mental and physical health for conditions that are not curable, and it is expressed as a percentage.  The assessment of the personal injury must be carried out by a forensic expert of medical science.

Biological damage is made by applying predetermined criteria provided by the law – ordered by the court or tribunal. The most commonly applied criteria is the one provided by the Law  and by the Courts,  which calculate the damage by percentage from 1 % to 100% crossing with the age of the injured

Until 9% of permanent the scale is provided by Law, called

Tabelle delle micro permanenti

Calculate here

For the damage from 10% the Italian Courts had calculated different criteria; the most common and used is the Court of Milan’s one.

Tabelle Tribunale di Milano

You can calculate by yourself here

  • “Moral damages” consist of the moral harm, anxiety, distress and offence to a person’s general well being. Accordingly, the assessment of the quantum of moral damages is related to the percentage of biological damage – up to 20%. This is in accordance with article 139 of Legislative Decree of 7 September 2005 n. 209 (Code of Insurances), which also provides the power to increase the sum of compensation.

DAMAGES BY DEATH

The damages suffered by the victim caused by physical injuries leading to death after a brief lapse of time, also referred to as damages due to killing or loss of life.
In jurisprudence, however, there has been – and there still is – a marked difference of opinion on the subject of how to compensate injuries causing immediate death or, alternatively, injuries causing death after a brief lapse of time.

According to a first opinion, somewhat restrictive, given that death concerns a juridical asset of life, as such different from good health (since loss of life does not constitute the maximum lesion of the right to health), damages by death cannot form part of biological damage (Civil cassation, work section, 27 May 2009, no. 12326).

Against this, another opinion stating that damage from immediate death must be included in the field of moral damage and forms part of the compensation to be considered in a unitary and all-inclusive manner, personalising the overall amount and also taking into account the above type of damage, provided there has been a specific and motivated request by the injured parties. Psychological suffering characterised by maximum intensity and a limited time span, must be compensated as moral damage, since it will not degenerate into illness giving rise to biological damage due to the limited interval of time between injuries and death (Civil cassation, Section III, 8 April 2010, no. 8360, and Civil cassation, Section III, 13 January 2010, no. 458).

CROSS-BORDER ROAD TRAFFIC ACCIDENTS

Cross-border road traffic accidents represent a small percentage of road traffic accidents in the EU27. Of these, the majority potentially create a risk of undercompensation of the non-resident victim, due to difference in the standard of living as in the calculation of the quantum of damages in member states. The problem of victims’ undercompensation in the event of a cross-border traffic accident has so far been approached mostly under the aegis of the need to achieve further harmonisation in European Tort Law, especially within the debate on the “Rome II” regulation on non-contractual obligations. Already during first reading, the European Parliament proposed to address this issue by mandating the application of lex damni when assessing the quantum of damage awards.

Avvocato Carlo Bottino Lawyer in Milan – Founder of Angloitalianlaw

Also published

http://www.studiolegalebottino.it/consulenze-legali/car-accident-in-italy-how-to-claim-damages/

The acquisition of a winery

An expanding market

The wine is, in the panorama of world agri-food trade, one of the most globalized products. Now sold and consumed around the world, the wine trade increased from less than 7 billion in the late ’80s to more than $ 34 billion in 2013 more than any other food and agricultural sector (+390%).

The wine had a great success both in world trade, that in quantities, exports grew by 43% between 2003 and 2013, going from 69 to 100 million hectoliters

Italy as world leader; the numbers

The production and export of Italian wine in particular had a significant increase that led this country to approach the numbers of France, which has always been the world leader in the sector. The prestige and the quality played another important rule in this success. Italian wines like Chianti and Barolo, and names such as Prosecco have become a great worldwide popularity that makes the manufacturers of such wines subject of increasing attention from potential international buyers, attracted not only by the quality of the product but also by the same brand.

The farms specialized in wine production rarely work their grapes. In most cases, their production is sold as raw material to industrial enterprises that do not directly manage the vineyards turning to the primary sector companies for the procurement of raw material required (wine grapes). This aggregate of transformers has about 1,800 enterprises, able to produce and put on the market, domestic and overseas, more than 40 million hectoliters of wine, of which about 29 million hectoliters relating to wines with denomination of origin (PDO and PGI). Thanks also to the activity carried out in parallel for nearly 4,000 bottlers, this important wine production ensures a total value of about € 9 billion.

With this document we intend to identify all issues related to the due diligence to be performed in acquisitions of companies operating in the wine sector by providing a brief practical for approaching to this matter.

The case studies in this field are obviously different;

Definition

Starting from the literal meaning of the wine-term, we could be called a wine farm where a complex of assets organized for the exercise of an enterprise that concerns the cultivation of grapes and wine production.

We could also call it winery that is a company specialized in wine making.

A winery has a production workshop and a wine cellar (with vats, barrels and barriques) for storing and aging wine. A feature of the great wine houses is the attention to quality: in fact many of them have a special department dedicated to the verification of product quality.

A wine company doesn’t always own a vineyard; While many wineries possess vineyards and follow the entire procedure from the plant of the winery bottling lives and marketing, there are also some dedicated only to the processing of the grapes, which are often found in areas far from the cultivations of lives.

They will thus have cases of sale of one branch of business or a company as a whole (often with different agricultural activities not only wine but, for example, cereal and oil production);

It will be open to negotiation one share of the company, a simple land or a country-Fund (for which the rules of the farmer applies)

It must also assess whether the potential buyer is interested in a company that has already set the marketing or a company to set up from the beginning.

At times complex and unexplored is the field of Community grants to businesses, which, especially in Italy, appears often monopolized by public or para-public structures that make particularly difficult to access as well as bureaucratically challenging.

To set up our consultancy activities we thought it easier to locate all of these case studies with related issues in an introductory scheme that will direct potential buyers to wine business, as well as professionals called to offer their services.

Below you will find a questionnaire, please answer the questions so that we can make a custom search of the type of company you are interested and put us in a position to bring together the best supply and demand. “

Avv. Carlo Bottino

Founder of Angloitalianlaw

published also

STUDIO LEGALE BOTTINO

 

 

The case in which an expat resident in Italy receives a lump sum or an annuity from a pension fund or a foreign insurance company ( e.g. Traditional and ROTH IRA in U.s., Register retirement Saving plan in Canada) is now widespread.

However, it is not easy to understand what system of taxation has to be applied.

The practice on the system of taxation  of this kind of funds and schemes is very fragmentary and the rules that regulate the matter seem to refer only to the pension funds and other forms of the Italian supplementary pension schemes.

These provisions seem to be made on Italian supplementary pension schemes, not covering foreign ones. They generally provide for the application of substitute tax or withholding taxes in the same way as the pension fund (or, in the pension plans managed by insurance contracts, the insurance company) is resident.

The practice on the proceeds of foreign pension funds is extremely poor; as these are pension benefits which normally do not derive from work in public administrations, double taxation agreements do not help. As a rule, in fact, these are taxed in the recipient’s state of residence and exempt in the State of the source; sometimes there could be concurrent taxation with the tax credit.

Due to the lack of a clear interpration in both legislation and interpretation, taxpayers residing in Italy who are currently eligible to claim a social security  (in the form of lump sum or life annuity) from a foreign pension fund or who have redeemed their pension rights do not know how to operate.

A first solution is to apply generally the directions given by the  Note 2004/66566 by the  Regional Revenue office of Lombardy  2004 as follow:

Consider the lump sum or life annuity  paid as if it were derived from a life insurance contract regardless of the fact that social security benefits are not paid by an insurance company and not considering as well that the benefit does not derive from a financial investment, but from a pension plan.

A second solution is to apply the rules on supplementary pensions schemes of the Italian Tax Act and of Legislative Decree 252 / 2005 which, due to their generic statements, lend themselves to apply both to Italian and foreign source income, taking account of the fundamental principle according to which the discrimination of residents in Italy who have taken part in supplementary pension schemes of institutions resident in EU states would run counter to the principles of freedom of movement of workers, services and freedom of establishment.

1) when the management of the pension plan (defined with the criteria in Article 6, paragraph 1, letter d) of the aforementioned Directive 2003/41 / EC) is entrusted to a company or entity belonging to the EU:

–  the social security benefits paid in the form of lump sum (both the final benefits and the proceeds of the early repayments) should be taxed by making the difference between the capital received and the part that has not been deducted pursuant to Article 10, paragraph 1, letter e-bis) of the Italian Tax Act on the tax of 15% or 23% depending on whether it is applicable to Article 11 or Article 14 of Legislative Decree 252 of 2005; all the financial performance would therefore be taxed with these rates, without applying Article 17 of Legislative Decree 252 (taxation of the management results produced by the fund at 11% up to 2014 and 20% starting from 2015) which concerns literally only the taxation of Italian pension funds.

– The benefits paid in the form of financial income should be treated as the corresponding Italian income. The returns included in the aforementioned services would then be taxed by applying the aforementioned Articles 11 and 14 of Legislative Decree 252 of 2005 as well as Article 44, paragraph 1, letter g-quinquies) of the Consolidated Law and without applying Article 11 , on the taxation of the supplementary social security form. The generic regulation of life annuities constituted for pecuniary payment as referred to in article 50 paragraph 1, letter h, which entails the full taxation of ordinary tax income, would apply to other benefits.

2) when the management of the pension plan is entrusted to a non-EU company or entity, both the benefits paid in the form of capital and those paid in the form of financial income should be taxed at a progressive rate, unless – for the benefits paid in the form of lump sum – these forms of social security are considered as to constitute the use of capital; the principle of freedom of capital movements (which incorporates the right of residents not to be taxed according to place where they make their investments) operates not only for investments made in Europe, but also in the rest of the world.

Avv. Carlo Bottino

Unlike in some other jurisdictions, pre-nuptial agreements are not commonplace in Italy. The reason for this is evident; until relatively recently, even where the parties had entered into a pre-nuptial agreement, the Italian Court would not enforce it. In this guest blog Italian lawyer Veronica Magrini of Anglo Italian Law network looks at the status of pre-nuptial agreements in Italy and the marital property regime itself.

Divorce in Italy

Under Italian law, the significance of divorce (and indeed, separation) is that it is considered a matter of ‘status’. Consequently, you are not permitted to deal with this status in a contract, nor with the rights that derive from the divorce such as financial provision (including the provision of maintenance or ‘alimony’ where there is an exceptional case of need). This means that any pre-nuptial agreement would automatically be declared invalid or void.

The historical influence

The attitude against pre-nuptial agreements is also reflected in historical factors. Societal views have played a significant role too. Crucially, divorce has only been permitted in Italy since 1970. Over the years, both the social stigma and general attitude towards divorce has lessened. This has paved the way for a more permissive system in which couples can divorce.

The Italian marital property regime

There is another relevant point to highlight regarding the division of assets on divorce. Under Italian law, the divorce court has no power to make an order as regards the distribution of assets in relation to the property of the spouses. Instead, the marital property regime centres around two ‘routes’, either of which can be chosen by the parties upon marriage. Both options are legally binding for the rest of married life and even after.

  • The ‘Joint Assets’ route (the default position): as of the date of marriage, all property belongs to both spouses in equal shares;
  • The ‘Separated Assets’ route: upon marriage, each party retains assets held in their own name or purchased by himself/herself, and will continue to do so, unless the couple buy property together or opt to jointly own it (this “route” is now chosen by the vast majority of couple mainly for tax reasons). In case of disagreements about the ownership of assets (as it may happen when assets are acquired in the name of one spouse but paid for by the other) it is not the Divorce Court who has to make a decision over these properties but the Civil Court, through further and separate proceedings, which have nothing to do with divorce law.

The treatment of assets outlined above will only apply to property purchased after the date of marriage. Maintenance obligations and inheritance rights are unaffected by the above election and are governed by separate provisions under Italian law.

On the face of it therefore, it would seem relatively straightforward to sort out the finances of an Italian couple on divorce: if there are jointly held assets, then it will be a simple case of a 50/50 split. If assets are not held jointly, theoretically, there should be no reason for debate as each party retains assets held in their sole name.

But what happens in the following scenario:

  • the parties opt for the ‘Joint Assets’ regime but
  • one party alone provided the monies for the family home even if the other party could have contributed to the purchase price but in fact did not?

And what about the spouse who contributed to the family life in a less evident but fundamental way, taking care of the children and so on (a non-financial contribution therefore) but the parties had elected for the ‘Separated Assets’ regime. Would that spouse end up with nothing at all save for provision for the children?

And finally, even in case of the ‘Joint Assets’ regime, there could be a number of options as to how assets could actually be divided to ensure an equal division.

The scenarios mentioned above are indeed fairly common and it is for this reason (particularly in ‘big money’ cases or where the overall composition of pre-marital assets held is rather complicated or likely to become complicated), that spouses attempt to mitigate any disagreement over asset division on divorce by entering into a pre-nuptial agreement of a similar contract. The same can be said of any country in which pre-nuptial agreements are common.

Because of the operation of Italian law, the fact that pre-nuptial agreements are not strictly enforceable does not mean that certain clauses of the agreement cannot be severed and consequently be considered binding on the parties. However, as stated above, any provision attempting to upset the will of the parties to divorce or not would technically be null and void.

How to overcome the problem?

Due to this approach, arguably, it would be preferable not to enter into a pre-nuptial agreement but to make a provision for ‘who gets what’ at a time when the divorce or separation process is underway – a sort of post-nuptial agreement. This way, the parties can deal with all aspects of the marriage: children, housing, maintenance, the disposal of property etc. at the same time. Having reached a settlement, the Italian Court will have the final say in determining if the children (if any) are prejudiced in any way by the agreement. If not, the court can seal the order on the basis that the remainder of the agreement is enforceable under Italian law.

The future of pre-nuptial agreements

Whilst there is little case law on the enforceability of pre-nuptial or post-nuptial agreements in Italy, following a decision of the Supreme Court[1] in 2012, courts mayenforce financial agreements provided that the agreement has been freely entered into and where there is no evidence of duress as regards the divorce proceedings. Further, the agreement itself must not be considered to be a ‘pre-nuptial agreement’.  If the agreement passes this test, the courts will look to regulate the fairness of the financial agreement insofar as each party is concerned but the hurdle is not easily overcome.

What this means in practice is that an agreement seeking to deal with the finances on divorce may be enforceable subject to the test of ‘fairness’. It will not however be regarded as a ‘pre-nuptial agreement’. This will continue to be the case until a specific law is enacted by Parliament so as to allow such agreements to be valid under Italian law. There has in fact been some progress in this area with proposals being put forward to address this issue. However, the fact remains that the existence of the matrimonial property regimes seems to be fairly protective of the rights of the better off whose property rights can hardly be challenged by a Court’s order. These regimes in fact avoid any dispute that may arise about the assets after a divorce order although the position of the worse off party may be highly compromised by a Separate Assets nuptial agreement entered into at the time of the marriage.

[1]Cass. I sez. Civ. 21/12/2012, sent. n.23713.n

By Veronica Magrini

Published on

Pre-nuptial agreements in Italy

WHO CAN MAKE AN ITALIAN WILL

 A person who is

  • at least 18 years old

  • the legal owner of the remaining 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……

Italy recognises as valid an Intenational will as valid, but it is recommended that a foreigner makes a will in Italy if he/she

  • is living permantly in Italy, having the residence there at the time of his death

  • is a Foreigner who owns immovable property (house, flat, land) in Italy.

The main reason for making an Italian will is to simplify matters at the time of death.

………AND WHY?

  • Heirs of an only English will 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 may have substantial difficulty in examining the English will with regard to the Italian assets, in resolving the conflicts between the English and Italian law, as well as advising heirs and/or preparing suitable documentation to transfer the assets.

  • the costs of translation of all English documents in Italy are going to be very higher, more than the cost of making an Italian will

  • you must save money in respect of Inheritance Tax, because the Italian legislation is more generous than the English one (see INHERITANCE TAX CHAPTER). This in practice means that the small / medium Estates are not subject to Inheritance tax in Italy.

DIFFERENT WAYS OF MAKING A WILL

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

  1. Handwritten Will (Holographic will – Testamento Olografo)

This document:

  • is personally handwritten by the person making the Will (Testator),

  • is dated (determining the most recent will in the event of these being several

  • is signed.

  • 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.
 

2. 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.

  • is a fairly formal document.

  • will not be lost / disregarded,

  • involves a cost (notarial fees),

  • is disclosed to a third party, because it is public will, not secret.

3) 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 shall 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

a) Handwritten Will (testamento olografo)

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

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

The costs

c) Secret will (testamento segreto) see above

WHO PREPARES THE WILL

It is better to have legal advise by a lawyer dealing with the two jurisdictions. Wills and probate matters involve taxation issues , then ask to an Italian accountant should be advisable in preparation of the will (generally an Italian lawyer can introduced you to him and works together).

If you have chosen to make a Testamento pubblico, the public Notary can draft the wills according your instructions; it is not simple to find a Notary dealing with the two jurisdiction, as the Testamento Pubblico involves only the Italian legislation.

HOW LONG DOES IT TAKE

It is not a long procedure, It is important to prepare all documents accurately. Contact an Italian professional (lawyer or Notaio) and avoid changing your mind, if possible (actually you can change your will up to the time of death, but if you are in good health why 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, you must ascertain what kind of will the testator made.

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 6 months from the date of death. They must complete a form in which all the assets will be included, apply to Ufficio delle Entrate (Tax office) of the town where the deceased was resident. If the deceased was not resident in Italy, the declaration of succession must be presented to the relevant Tax Offices in Rome.

Finally, the Professional will be able to complete the procedure by registering the new owners at Ufficio del Catasto. A registration tax must be paid, calculated on the value of the assets.

ITALIAN INHERITANCE TAX

The heirs will be requested to pay the Inheritance Tax when they present the above mentioned declaration to the competent office.

The Italian inheritance tax was abolished in 2001 but it has been recently re-introduced by the government.

The new Italian Inheritance Tax is now levied at three different flat rates, on the whole or part estate of the Deceased with reference to the beneficiaries entitled, as follows:

– 4% where the Estate or part of the Estate devolves to the Deceased’s spouse or children, with a nihil rate band up to € 1,000,000 each (which at current exchange rates is equivalent to an exempt slice of £ 657,800 for the spouse and each of the children) (the so called “Franchigia”).

– 6% where the Estate or part of the Estate devolves to brothers or sisters (subject to an exempt amount of Euro 100,000 each) and to other relatives of the Deceased up to the 4th degree (without any “exempt amount”),

-8% where the Estate or part of the Estate devolves to unrelated parties. Where the Estate or part of the Estate devolves to one or more disabled children, the exempt amount is increased to Euro 1,500,000 (£ 986,800 at the current rate of exchange).

– where the Estate includes a business or a substantial shareholding in a company, whatever their amount, they are not taxed on death if they pass to the children of the Deceased, and the said children undertake to continue to carry on the business or control the company for at least 5 years.

IS THE PROCESS DIFFERENT FOR FOREIGN RESIDENT

The English rules relating to succession may vary according to whether the estate consists of movables or immovables and whether the deceased has left a will or died intestate.

The Italian legal system has adopted the principle of unity of succession; as consequence, the legislation of the deceased’ s country apply.

Contrary to the Italian legal system, the English law has adopted the so called principle of scission with the result that the succession of movables is governed by the law of the deceaseds domicile, while the succession of immovables is governed by the law of the situs.

For example, if you bought a property in Italy in your name and you still own it at the time of your death, under the English rules its succession should be regulated by the Italian law of succession. The Italian legal system accepts this referral by the English law and therefore the succession of this asset will be regulated by the Italian law of succession.

Avv. Carlo Bottino

Lawyer in Milan

Once upon a time there was an Englishman in Liguria like Stings music ‘Englishman in New York’.

One could ask the question,what the hell is an Englishman doing in this Province?
Perhaps he is attracted to the fact that Genoa has the same flag of  St  George  as  England : the red cross on a white background. There is historical/geographical tradition as this flag was adopted by Richard the Lion Heart during the Crusades from that of St George ,patron saint of Genoa. The  English  in due course adopted St George as their patron saint and the said flag, abandoning their earlier patron the poor and less marketable St Edmund!!

However this fact or the flag had no attraction to our Englishman.

He was attracted to the Ligurian for its beautiful coast, landscape,  food, wine, hills,  sea diving, olive tress,focaccia,pesto, farinata, ‘piano piano’ lifestyle inter alia. Consequently he decided  to purchase a small dream house  in  the world famous  UNESCO   region  of Cinque Terre or also as Riviera Dei Fiori. Staircase to a hillside sprang to mind.

Not far from  the words uttered by his favourite band, Led Zeppelin. Everything seemed to fit and he was now in heaven.!!

Our Englishman in a state of shock wondered what is going on. They issued our Englishman an Official Notice to say part of the outbuilding was sequestered for lack of conformity and planning/ building regulations and forestry breaches.

He  was politely  advised to seek independent legal advice from an Avvocato to defend him in Criminal and Environmental proceedings.

Shock horror. Our now helpless and desperate Englishman started to become anxious wondering how could this nightmare happen.
After all the Estate agent had recommended him to the best Geometra in town and  who was also a good friend of the local Sindaco ( the Mayor). This Geometra, had prior  to  the purchase, told our Englishman in a very relaxed manner that it was fine to develop and use the outbuilding of a Barn as it already had the necessary permission.

The Englishman improved the state of this Barn and built a small bathroom and put a sewer system so that he could use the Barn as a separate dwelling.
The Geometra had said no problem as everyone here does that to small shed/stone buildings.
Our Englishman feeling he was ‘welshed’ wanted to know who had reported his ‘improvements’ to the Authorities. Who was the Spy?!!
Our Englishman later learned through local gossip that the answer was simple. A powerful Geomatra in any Ligurian village or town always has an enemy/rival who waits  for the slightest misstep and then to report this to the local authorities (Comune and Procura).

He was further told if that was not the case the other Spy could have been a jealous neighbour.
Our Englishman thought, I should not have relied on the estate agent and chosen a Geometra and Builder of my own choosing. Alas too late. All sorts of anxious thoughts was now going through our Englishman’s mind. Consequently his dream turned into a nightmare and the Englishman is now wanting to sell the blighted house (staircase to hell) and return to England and start a movement to relinquish the flag of St George and reappoint St Edmund as the patron saint of England.
The moral of the story – every thing has a payback. When the English took the flag of St George from the Genoese to defend themselves from the ‘pirates’ little did they know that often the ‘pirates’ could be the Genoese themselves!!! That could be the sting in the tail.!!
So do not assume anything when you are in Liguria. First seek the advice of a recognised lawyer (Avvocato).

Avv. Carlo Bottino

Lawyer in Milan Founder of Angloitalianlaw

Note: this was written with the help of our Englishman by a Ligurian terribly in love with his Province even though he is frightened by his people.

The Italian legal system is very different from the English. Conveyancing is strictly governed by Italian Law and can be performed only by a public notary (Notaio), who is a qualified professional and public officer. Only in front of Notaio it is possible to complete the purchase of any real estate.

THE PRELIMINARY CONTRACT (Contratto preliminare or compromesso)

If you are still happy with the property then the next step is to go ahead with the preliminary contract (compromesso). The compromesso is a significant commitment and involves the payment of a deposit to the seller as an act of good will and undertaking. The purpose of the compromesso is to clarify all the conditions of the sale, including the purchase price and term of payment.

The compromesso can be drawn with the agreement of both parties. It is a golden rule to get a legal advice by an Italian lawyer before signing it. It is very important the buyer not to sign the compomesso unless He is perfectly happy and aware with everything written in the contract. Remember the buyer is in a position to impose conditions or restrictions on the vendor at this stage (e.g. see an example of compromesso conditioned to get planning permission.

The signing of the compromesso which involves both the vendor and the buyer or their power of attorneys must take place in the presence of the notaio. At the time of signing, the buyer must pay a deposit of between 10 and 30 % of the sale price. Should the buyer not to go through with the purchase after signing compromesso, he will lose the deposit paid and may be sued by the vendor. If, however, the deal does not proceed because of the vendor, the buyer has the right to demand up to twice the amount of the deposit paid in compensation. In this case the buyer may also claim damages and have the sale compulsorily completed by a Court order (art. 2932 Italian civil code).

CAPARRA PENITENZIALE

If there is any doubt in the mind of either the buyer or the vendor as to the final completion of the sale, it is possible to state in the compromesso that the deposit is a caparra penitenziale (withdrawable). This will prevent any further legal proceedings or claims for damage. However, in the case of the buyer ‘s breaking contract, he or she will still have to lose the deposit to the vendor, and in the case of the vendor’s withdrawings, he or she will still have to pay double the deposit amount to the buyer.

If both parties want a quick sale and have no differences concernings conditions, price or otherwise, it is possible to have the actual transfer of the property written into the compromesso.

COMPLETION (ATTO)

The atto is the final act, when the Notaio certifies the parties’ identity and witnesses the transfer of title from one party to the other and collects the taxes due on the transaction. With all parties present the notaio will identify them, one by one, and then read through the rogito (completion document) in detail, making sure that everyone understands what is being bought and sold. With all in agreement, the notaio will ask each party to sign before he signs and adds his official stamp to the document. In case of absence of either one of the parties he will certify the signature of the procura speciale (power of attorney). At this moment of the completion the buyer has to pay the remaining balance of the purchase price, plus taxes and notaio fees.

REGISTRATION OF THE TITLE

In Italy there are two different Official Land Registries: the Catasto and The Conservatoria dei Registri Immobiliari. Once the transaction has been completed, the notaio will register the transfer of the title by the vendor to the seller into the Conservatoria Registry; this is very important, should another person registers another atto earlier than you, the other will beat your title and become the new owner.

GOLDEN RULE

Check the vendor’s title before starting with conveyancing in the Conservatoria Registri Immobiliari entering the seller’s name (Italian Lawyers and Notai can do this for you with their dedicated internet access). This is the only way to check the good title and if there are any charges on the property (e.g. mortgages, Court Order, Court Proceedings in course relating to the property etc…) . In the Catasto you can find only the exact id. number of the land without being sure with the name the owner.

Make sure the Conservatoria does not contain any adverse entries at 3 stages: a) Before putting your offer and signing the compromesso b) after signing of the the compromesso c) immediately after the atto.

Avoid the other pitfalls in buying property in Italy (neighborough farmer’s pre-emption right, planning permission denied, regional environmental legislation, geological and sismic reports)

Avv. Carlo Bottino – Founder of Angloitalianlaw

Lawyer in Milan

Also published

http://www.expatexchange.com/ctryguide/4896/58/Italy/Expat-Advice-Buying-Property-in-Italy

The number of cross border families in the Western Countries is increasing constantly.

 People travel across different jurisdictions more, international marriages are on the rise, and individuals have interests abroad or finally relocate to the country of their dreams. According to EUROSTAT, the statistical office of the European Union, 31.9 million foreign citizens lived in the EU-27 in 2009, comprising 6.4 percent of the total EU-27 population.

 About one-third, or 11.9 million, were citizens of another EU-27 Member State. Many forms of cross-border movement within this area remain uncounted by official statistics. European citizens cross the borders unregistered, often remain essentially invisible in their destination countries, and may be counted differently depending on their countries of origin and destination.

 When things go well, the life of the expats may be looked at with rose tinted glasses.

But sometimes these families may split and their members return to their native countries. This is sad; but when one of the two is not fulfilling their obligations as maintenance, sadness may easily turn into big trouble.

 However the recovery of maintenance money in recent times is not such a nightmare any longer.

 The big divide is between the EU Citizens and the non EU Citizens.

 The “Maintenance Regulation” applicable in the European Union (except for Denmark) as of 18 June 2011 introduces a new area of cross-border maintenance recovery inside the European Union. This regulation includes besides jurisdictional rules, provisions simplifying and accelerating recognition and enforcement, applicable law rules and it introduces a system of Central Authority co-operation as well as extensive legal aid provisions. In short, the Maintenance Regulation constitutes a major improvement for those seeking the cross-border recovery of maintenance.

On a global level, it is the recently adopted 2007 Hague Convention which holds the promise of a new area of cross-border recovery of maintenance, particularly in regard to child support, on a global level through the introduction of simplified, swift, accessible and cost effective procedures. Together with the new Hague Convention, the Members of the Hague Conference adopted a new global applicable law instrument: the 2007 Hague Protocol.

From a practical point of view, the Europeans can apply for a recovery from a EU Country without moving from their Country of residency, without even hiring a lawyer and taking advantage from the numerous provisions for legal aid as expressed by the EU Regulation. Normally the assistance of a private lawyer will speed up things (true life experience) but it’s not essential.

As to the rest of the Non-EU world the Hague Protocol will be applicable. As every other international convention this is applicable only to the Countries who not only did sign it, but also have ratified this instrument. This is not the case of the United States as of yet.

For the Citizens of those Governments who have not yet enforced neither of the above said instruments, the situation is a bit more complicated and may require the recognition of the foreign decision -divorce or order of support that it may be- through the Local Courts. In this case the help of a Lawyer is essential.

The matter is evolving continuously: the needs of cross-border families are at the heart of modern social life.

 Marco Calabrese, International Divorce Lawyer in Rome – Founder of Angloitalianlaw

There are basically two ways to become an Italian Citizen.

One is to sneak into an Italian woman’s womb and make sure to be delivered after nine months in proximity to a Trattoria, so that you can enjoy a good dish of spaghetti as you come out.

The second is to claim Italian Citizenship through our Government, as you may have lost it along the lines of immigration.

(Other ways are possible but they generally apply to foreigners who live or have lived in Italy- residence, military service, passing of time etc. )

Citizenship is passed on from parent to child without limitation of generation, but none of the ancestors must have ever renounced their Italian citizenship. In other words, if your grandfather moved to U.S.A. and remained Italian until the day of his death, then you are eligible for citizenship: but if he had naturalized as an American, you may not be such any longer. Consequently, following with the same example, if your parent(s) were born in the USA they are American by birth for the USA but may be still recognized as Italian by bloodline for the Italian law: and so are you.

Also, if you were born before the naturalization of your ancestor you are still eligible for citizenship.

When a person claims to be of Italian parentage or ancestry but no proof of the fact can be found in Italian registers, it is necessary to provide proof that all ancestors have maintained, and thereby passed on, their Italian citizenship. The Authority legally valid to ascertain these facts depends on the person’s place of residence: for foreign residents, the diplomatic-consular mission in the country of residence.

Transmission of citizenship through maternal lineage is possible only for persons born after January 1st 1948.

Up until January 1, 1948 (when the new Italian Constitution entered into force: making equal the rights of the two genders), it was not possible for an Italian mother to transfer Italian citizenship to her child. However, the Italian Supreme Court recently ruled that this provision was contrary to the constitutional principles and, more precisely, to the principle of equality between the sexes. Accordingly, children born before 1948 by an Italian mother may also be eligible for citizenship but this recognition is not automatic as it is for the children born after 1948. So that a specific lawsuit will be necessary.

As I said above, many exceptions to the Jus Sanguinis (Rights of Blood) are now in place: these have even been extended lately, making possible -for instance- also to foreign children who have studied in Italy- to become Italian given certain conditions.

However, the number of North Americans claiming citizenship is increasing; the USA in fact are now the 8th Foreign Community by number of new residents in Italy and by far the first amongst Western Conutries. I would not be surprised if a growing number of these …new immigrants had italian roots and claimed citizenship (no statistics on that, sorry!)

Generally speaking if you consider to claim citizenship, the assistance of a lawyer in Italy may sometimes turn out to be a good idea.

A detailed booklet is available in every Italian Consulate.

Bentornati a casa!

Marco Calabrese – Lawyer in Rome – Founder of Angloitalianlaw

My Country must be the ideal place, from a financial point of view, for the husbands to get a divorce.

First, the regime of separation of assets in Italy (which is chosen by 70% of the couples at the moment of the celebration of their marriage) hardly leaves any room for financial attributions in favour of the disadvantaged spouse at the moment of divorce.

Secondly, after decades of feminism the mainstream position of the Courts about support for the stay-at-home mums can be now summarized as; “Get a job, dear”.

Yesterday I was attending to a Family Law Court’s hearing. My Client: a 30 something elegant and charming young Lady, with two children aged 3 and 5. She had recently and proudly graduated as an Interior Designer. Minor detail: she can still speak only a little Italian as has always been a stay-at-home mum and speaks English to the kids. However she is actively searching for a first job (this is not easy in my Country especially for a foreigner).

The husband, on his part, had blatantly lied about his income: however we were not able to prove his earnings in their exact amount before the temporary orders. This will be done later in the proceedings through an appropriate investigation ordered by the Judge.

The Judge was a 30 something Lady, charming and elegant as well, a bit too brisk-mannered for my tastes of old attorney, but certainly she was acting so for fear of losing credibility because of her young age. At the end of the hearing the Judge issued her temporary orders -to remain valid until the end of the separation proceedings. The husband must leave the house and will have to pay 1500 E. a month for the 2 children, plus the extras for schooling, health care, travels and so on etc..

The wife though -the Judge ordered- is not entitled to any form of maintenance. Care-taking for a child does not absolve you from supporting yourself said the judge “because young, healthy and educated therefore you should be able to find a job”.

I know that today there is little sympathy for women who stay home from the Courts, particularly when the magistrate is a woman who has worked her way up as a law graduate — most likely having to put her own children in daycare to earn a seat on the bench.

You may call me a man of the XIX Century, but my Client WAS JUST A MUM. I don’t think it’s fair to deny maintenance all together, even for women who have not worked for decades.

And from a woman to a woman, too. What is this? The Stockolm Syndrome 2016 edition?

Probably I should have told my Client to dress like a beggar to be pitied on.

From one extreme to another.

Marco Calabrese is an international experienced lawyer based in Rome, Italy.

In the “2017 Budgetary Law”, definitively approved on 7 December 2016, the Italian Government has introduced a series of dispositions aimed at creating incentives for foreign investments in Italy.

Who have a large patrimony , could be interested in obtaining a fiscal residence in Italy through the combination of two dispositions contained in the 2017 budgetary law:

  • Tax benefit for newly-domiciled subjects, namely establishing a flat-rate tax on earnings generated abroad.
  • The “Investor’s Visa”.

The Director of Revenue has also approved the checklist template to attach to the request to get  a preventive assessment of the tax authorities regarding the eligibility for the tax-benefit. The benefit of the single tax can even extend to family members, it will apply a flat rate of 25 thousand euro.

WHO MEET THE REQUIREMENTS

Who had never been resident in Italy for at least 9 yearly tax period up to 10 previous, including who transferred in Italy in 2016 if he was abroad in the previous 9 tax period.

HOW MANY

The taxation of € 100,000.00 a year + 25.000,00 for each relatives cover all the income earned abroad ( not those produced in Italy) The claimant can indicate any country to be excluded from this kind of taxation

PREVENTIVE REQUEST (Interpello)

Article 24 bis of Italian tax law (TUIR) states that is possible (but it is not compulsory) to provide a specific preventive affidavit (interpello) to the Revenue Office (Agenzia delle Entrate) delivered by hand, by registered mail with return receipt or notice electronically, using certified mail. With this affidavit the claimant attests his situation asking directly and previously to the Revenue to have an assessment of his  eligibility  to the flat taxation.

WHEN TO DO THE REQUEST

Taxpayers who meet the requirements can join the new regime at the time of submission of the tax return, related to the tax period in which it was transferred to the tax residence in Italy or in the immediate aftermath.

HOW TO DO THE REQUEST

In the request-form the taxpayer must indicate:

  • personal data and, if already assigned, the tax code, home address in Italy, if already resident;
  • the status of non-resident in Italy for a time at least equal to nine tax years during the ten preceding years:.
  • the Country or the Coutries in which he had the last tax residence during the last 10 years before the request;
  • Contries or overseas territories for which he intends to exercise the option of not using the substitute tax.

He must also fill in a”check list” to examine the condition of the absence of tax residence in nine ten tax years before entering the flat tax.

see here check list form

BENEFIT EXTENDING TO THE FAMILY MEMBERS

The flat-rate scheme can be extended to one or more family members in possession of the requirements, through a specific indication in the tax return related to the tax period in which the family moved the tax residence in Italy or in the next. In this case, the substitute tax is equal to 25 thousand euro for each of the family to which the effects of the same option are extended.

DEADLINE

The request of this tax benefit option  must be exercised within the period for submission of tax returns, even if it is not yet responded to by the Inland Revenue to the preventive requests.

The application may be filed even if they are not time-barred to enter in fiscal residence in Italy. Received the green light Revenue (even for silence / consent), the neo resident will be awarded with the facility for the next fifteen years. The payment of substitute tax, in the amount of 100 thousand euro, must be made in a lump sum, for each tax period of the scheme effective, by the due date for payment of the balance of income tax.

Avv. Carlo Bottino, Lawyer in Milan – Founder of Angloitalianlaw –