Notes on inheritance law in Italy

The Will in the Italian Legal System

In the context of estate planning, the will is a crucial tool for ensuring that one’s wishes are respected after death. In Italy the will plays an important role in succession law, offering the testator (person who makes a will) the possibility of defining how assets will be distributed after death.

Types of Wills in Italy

In the Italian legal system, the will is divided into two main types: holographic (hand-written) and public. A handwritten will is the most common and easiest will to draft. On pain of nullity, it must be written in the testator’s hand, then dated and signed. In essence, paper and pen are enough. After the death it must be published by a notary to be valid and effective. The public will, on the contrary, is drawn up by a notary in the presence of two witnesses and kept by the notary. This document also becomes effective after the deceased has died.

Methods of Drafting and Requirements

As already mentioned, the drafting of a will entails a series of formal requirements to ensure its validity. First of all, the testator must be mentally capable of understanding his/her actions and the meaning of the provisions (ability to understand and want). In the case of a holographic will, the written form is also essential: the text must be written by hand, and the date and handwritten signature of the testator are mandatory, all under penalty of nullity. In the case of a public will, on the other hand, the presence of two witnesses is required to confirm its authenticity.

Content of the Will

A will offers the freedom to dispose of assets in various ways. Through the so-called “legacy”, particular objects, goods, or sums of money can be allocated to specific persons or institutions. If the entire estate of the deceased or a portion of it is transferred to a person, this person will be identified as universal successor or heir. It is also possible to appoint an executor, i.e. a trusted person who ensures the correct implementation of the testator’s will.

When drafting a will we must not forget that Italian law provides for so-called “legitimacy”, i.e. an instrument of protection for the heirs. These are subjects linked to the deceased by close kinship and marriage relationships, who are automatically entitled to a share of the hereditary assets. They are identified by article 536 of the civil code and if they see their rights harmed by the provisions of the deceased they can challenge the will (known as lesion of legitimacy).

Execution and Validity

After the testator’s death, the will must be published. There is a precise legal obligation in this sense. If it is a holographic will, it must be delivered to the notary for opening and reading of the will. In the case of a public will, the notary will proceed with the opening of the deed and its registration. It is important that the will is deposited in a safe place and that a trusted person is informed about this.

International Succession

It may be that at time of death the deceased is not in the country of which he/she is a citizen, or has no ties to a single country. In fact, he/she could reside in another state at the time of death, or possess assets in other countries. In these cases, or when the deceased has links with different States, we speak of

international succession, with the consequent application of the specific regulation, in particular of Law 218/1995 and of EU Regulation n. 650/2012. Much of the legislation, specifically that governed by law 218/1995, has recently been subject to reform and repealed by the EU Regulation.

However, note that the European Regulation, in some cases, does not apply. It does not apply to English (and this even before Brexit, as the application of the EU Regulation was expressly excluded from the outset), Irish and Danish citizens.

For these citizens, therefore, law no. 218/1995 continues to be in effect.

Italian private international law is regulated by law 218/1995, and succession matters in particular by articles 46-50. Art. 46 provides for application of the law of citizenship of the deceased with the possibility of choosing the law of the state of residence.

As anticipated, from 17 August 2015 private international law on succession matters is governed by the community legislation of EU Regulation no. 650/2012, to which Italy has adhered.

This Regulation constitutes internal law of private international law for Italy and for all the other adhering states.

Under the regulation, the law governing succession is now that of the last habitual residence of the deceased at the time of death (art. 21) but it is possible to choose the law of the State of which he is a citizen at the time of choice or at the time of death. In the case of multiple citizenships, it is possible to choose the law of any of the States of which the deceased is a citizen, at the time of choice or at the time of death (art. 22).

The case of a English citizen who died in Italy. The sentence of the Cassation n. 2867 of 5.2.21.

Finally, we can cite an interesting recent judicial case. What happens to an English citizen residing in Italy who dies in Italy and who owns movable property in England and immovable property in Italy?

A case of this kind was addressed by the Cassation in Joint Sections with the sentence n. 2867 of 5 February 2021 which examined the case of an English citizen who died in Italy, who had movable property in England and immovable property in Italy, and was married to a second Italian wife, with two children born from a previous marriage in England.

First of all, the Supreme Court established that, since the deceased made no different provision, the law governing his succession had to be English law, as a national law pursuant to law no. 218/1995.

By virtue of the reference to English law, a division of the hereditary patrimony was determined: for movable property, the law of the “habitual domicile” of the deceased is applied (meaning by this term the territory with which the subject has a very close connection, which in the case in question was deemed to be England as the country of nationality of the deceased), while for immovable property the lex rei sitae is applied, i.e. the law of the State in which the immovable property is located (i.e., in the case examined by the Cassation, Italy).

Ultimately, it is always advisable to contact a lawyer for the correct evaluation of all the aspects connected with the drafting of such an important and delicate act as a will.

– by Avvocato Luca Trinchera