Despite all similarities, Italian inheritance law has the following particular features:
- Joint wills (e.g. the so-called “Berlin will” between spouses) as well as inheritance contracts are inadmissible;
- the inheritance does not automatically accrue to a person, but is a declaration of acceptance necessary;
- the right to a compulsory portion is much more pronounced.
1 Applicable law
When a foreign testator leaves assets in Italy, the following questions often arise:
- Which (national) law is applicable in the specific case?
- Was the testator able to make a testament when the will was drawn up?
- Were the formal requirements for wills complied with?
2 The law applicable to the inheritance
2.1 The applicable law
in cases with international implications, is determined by International Private Law (IPR). Italian law regulates this matter in Articles 19 and 46 to 50 of the Private International Law Act (Act of 31.05.1995 No. 218). According to Art. 46 of this law 218/95, succession is governed by the national law of the deceased at the time of succession (principle of nationality). However, the testator may, by making a declaration in the form of a will, subject the entire inheritance to the law of the State in which he resides (principle of residence). Such a choice of law is invalid, however, if the testator was no longer resident in the aforementioned state at the time of the inheritance, but regularly stayed in another place (so-called effective residence). The choice of law is also excluded if the testator is an Italian citizen and would discriminate against those entitled to the compulsory portion resident in Italy. The inheritance of a foreign testator, even if it includes assets in Italy, is therefore governed by the national law of the testator. If the testator is Italian, the Italian law of succession shall apply accordingly. Something else applies in the case of persons with several nationalities. In the case of multi-nationals, Article 19 of Law 218/95 provides that the law applicable is that of the country with which the person has the closest connection (so-called effective nationality); if the testator also possessed Italian nationality, Italian law shall apply. The distribution of the inheritance, i.e. the division of the testator’s property between the heirs, shall be governed by the same law applicable to the succession, unless the co-heirs agree that the applicable law is the law of the place where the succession was opened or of the place where one or more properties are located.
2.2 The testamentary capacity
The testamentary capacity, i.e. the ability to make a valid will, including the modification and revocation of the will, is governed by the national law of the testator at the time of its creation, modification or revocation.
2.3 Form of the will
A will is formally valid if it complies with the legal formal requirements of the state,
- where the testator made the will; or
- whose nationality the testator was at the time of the drawing up of the will or of the succession; or
- where the testator resided or stayed.
The forms and formal requirements of each type of testament will be discussed later.
3 Probate proceedings
According to Italian law (Artt. 456 ff C.C.) the succession is opened at the time of death at the place of the last domicile of the deceased. An inheritance is established by law (“legal succession”) or by will (“testamentary succession”). Legal succession only occurs if there is no testamentary succession in whole or in part. A will, however, cannot affect the rights reserved to beneficiaries of the compulsory portion. A joint will in which the spouses appoint each other as sole heirs and the joint children as final heirs, and a contract of inheritance which concerns their own inheritance or any rights arising from an inheritance which has not yet been opened, are null and void under Italian law (Art. 458 C.C.).
3.1 Authorities of the appointed heir
The acquisition of the inheritance takes place only upon its acceptance, but the legal consequences of the acceptance shall revert to the time of the opening of the inheritance. The acceptor is therefore placed in the same position as if he had received the inheritance at the time of its opening. Before accepting the inheritance, two different situations must be distinguished, depending on whether the heir appointed is in possession of the inheritance or not. Before accepting the inheritance, the appointed heir may take legal action to protect the inherited property, even if he is not in actual possession of the inheritance. These proceedings are aimed at eliminating so-called disturbances of possession, for example in order to restore the appointed heir’s possession of an estate matter at short notice. He may also take legal action to secure, supervise and temporarily administer the inheritance and, with the prior confirmation of the court, sell any unsustainable property. If the person appointed rejects the inheritance, the costs incurred for the above measures and legal acts shall be borne by the inheritance.
3.2 Appointment of an administrator of the estate
If the appointed heir has neither accepted the inheritance nor is in possession thereof, an administrator of the estate may also be appointed ex officio by the competent court of the place where the succession was opened to carry out urgent business. In this case, the appointed heir is not entitled to carry out the above measures and legal acts to secure or temporarily administer the inherited property. The administrator has the following duties: to draw up the inventory, to enforce the rights in question, to give his opinion on the claims made against the inheritance, to administer the inheritance, to deposit the money contained in the inheritance or obtained from the sale of inherited property. He may, with the prior authorisation of the court, pay the inheritance debts and fulfil the legacies, unless opposition is lodged by the creditors or legatees. In this case, he must make use of the inheritance. With regard to inventory, administration and accounting, the same rules shall apply as apply to the acceptance of the inheritance, with reservation as to the drawing up of the inventory. Upon acceptance of the inheritance, the administrator shall resign from office.
3.3 Acceptance of inheritance
The acceptance of the inheritance can take place either without reservation or under reservation of the inventory production. The second type of acceptance is always possible regardless of any prohibition by the testator and is obligatory in the case of minors or persons who are fully or partially incapacitated. A legal entity may accept an inheritance only with the above reservation and in compliance with the provisions on government approval. This regulation does not apply to companies. Acceptance may be express, tacit or implied.
3.3.1 Express acceptance
An express acceptance shall be made if the heir appointed
- has made a corresponding declaration in a public (notarial) or private deed; or
- has described himself as an heir.
A declaration of acceptance made under condition or for a limited period or in respect of only part of the inheritance shall be null and void.
3.3.2 Tacit acceptance
There is tacit acceptance under the following circumstances:
- the person appointed to the succession performs an act which necessarily presupposes his will to accept and which he would be entitled to perform only in his capacity as heir;
- gift, sale or assignment of the inheritance rights to a third party or to another co-appointed person;
- rejection of inheritance rights if they are made in return for payment or only in favour of some of the heirs appointed.
3.3.3 Rules on the exercise of the right of acceptance
If the heir appointed dies before acceptance, the right in question passes to the heirs. The above right shall expire ten years after the date on which the succession is opened. Before accepting the inheritance, any interested party may submit an application to the competent court to set a deadline for the acceptance or rejection of the inheritance. If no declaration is made by the appointed heir within the prescribed period, the right of acceptance shall lapse. Special provisions apply to the challenge of acceptance due to coercion, fraudulent intent or error. In the latter case, the rescission is excluded. If, however, a will is found after acceptance which was unknown at the time of acceptance, the heir is not obliged to fulfil the bequests contained therein beyond the value of the inheritance or by reducing the compulsory portion to which he is entitled.
3.3.4 Acceptance with reservation of inventory creation
Acceptance under reservation of the inventory preparation presupposes a corresponding declaration made before a notary or the competent court. The acceptance must then be entered in the court register and the land register of the place where the succession was opened. The inventory may be drawn up before or after the declaration of acceptance. In the case of acceptance with reservation of the establishment of the inventory, a distinction must be made between whether the appointed heir is in possession of inheritance property or not.
3.3.5 Appointed heir holding inheritance property
The inventory must be drawn up within three months of the date on which the succession is opened or the inheritance is notified. If this does not take place within this period, the heir appointed shall be regarded as an unreserved heir. The appellant who has not yet indicated the above declaration must decide within 40 days of drawing up the inventory whether to accept or reject the inheritance. After the expiry of this last deadline, the heir is considered to be the unconditional heir. During the time allowed for the inventory to be drawn up and for the decision to be taken, the appellant is authorised to exercise the powers specified in 3.1 and to appear as a defendant before the court for the inheritance matter.
3.3.6 Appointed heir who is not in possession of inheritance property
The declaration about the acceptance of the inheritance with reservation of the inventory can be made up to the limitation of the right of acceptance. The inventory is to be established within three months starting from the date of the above-mentioned declaration. If the inventory is not drawn up within the aforementioned period, the heir appointed shall be regarded as an unconditional heir. If the inventory is drawn up without prior declaration of acceptance, it must be submitted within 40 days of the inventory being drawn up; otherwise the heir appointed loses the right to accept it. If the period indicated in paragraph 3.3 is fixed, the inventory shall be drawn up within the same period; if the appointed heir makes the declaration of acceptance without drawing up the inventory, he shall be deemed to be the heir without reservation.
3.4 Lawsuit for Inheritance
The heir shall be entitled to demand recognition of his property from any person who possesses even only part of the property as an heir or without title in order to obtain the surrender of such property. The action may also be brought against any successors in title of such owner. Any rights acquired by third parties on the basis of transactions for consideration concluded with the presumptive heir remain unaffected if they can prove that they have concluded the contract in good faith. Certain provisions apply to real estate and movable property entered in public registers.
4 Debt liability and the possibility of limiting the debt liability of heirs
4.1 Consequences of the reservation of inventory creation
With the reservation of the inventory creation, the estate is kept separately from the assets of the heir. From this follows:
- the heir retains all rights and obligations to the inheritance which he had towards the testator, with the exception of those which have lapsed as a result of death;
- the heir is not obliged to fulfil inheritance obligations and legacies in excess of the value of the property transferred to him;
- the creditors of the estate and the legatees shall be given priority over the creditors of the estate in respect of the estate. If they wish to retain such a preferential right even in the event that the heir does not exercise or loses the right to inventory, they must apply for segregation of the property. The heir forfeits the rights arising from the reservation of the establishment of the inventory in the case of:
- the sale of inherited property without judicial authorisation; or
- false information in the inventory.
4.2 Payment of the creditors and legatees
Satisfaction of creditors and legatees may be effected in accordance with the following procedures:
- to the extent that they make themselves known, unless they object or the heir intends to initiate the liquidation procedure;
- exploitation of the inheritance;
- the transfer of the property.
The liquidation procedure takes place in the event of a possible objection by the creditors or legatees, who must then lodge their claims within a certain period of time. With the help of a notary, the heir establishes a hierarchy of creditors according to their respective preferential rights. If no appeal is lodged within 30 days of the publication of the order of precedence, it becomes final. Satisfaction then takes place in accordance with the order of precedence. At the request of one of the creditors or a legatee, a time limit may be set for the realisation of the assets of the inheritance and for the establishment of the order of priority. The notary must inform creditors and legatees of the order of precedence and publish it officially. If the order of precedence has become final or the judgment on any complaints has become final, the heir must satisfy the creditors and legatees in accordance with the order of precedence.
5 Right to a compulsory portion
The beneficiaries of the compulsory portion are: the spouse, the children, the legitimate ancestors. With the July 2013 reform of family law, legitimate and illegitimate children are treated on an equal footing as regards their inheritance rights. In the past, legitimate children were able to settle the portion of the inheritance to which illegitimate children were entitled with money or immovable property, provided that the illegitimate children did not object. However, the new provisions have not yet entered into force.
5.1 Reservation in favour of children
Subject to the rules governing the coexistence of the spouse and the children, if one parent leaves a single child, the latter shall be entitled to half of the estate. In the case of more than one child, they shall be entitled to a share of two third parties.
5.2 Meeting of spouses and children
In the event of a single child and spouse meeting, one third of the property is reserved for each. In the case of more than one child, they together hold half of the property and the spouse holds a quarter of the estate.
5.3 Restoration of the share reserved for beneficiaries of the compulsory portion
Testamentary dispositions which exceed the proportion which the deceased could dispose of are subject to reduction up to the same proportion. In the case of a statutory succession, in the event of meetings between beneficiaries of the compulsory portion and other beneficiaries of the succession, the shares which are the subject of the latter’s responsibility are reduced proportionately to the extent necessary to complete the portion reserved for beneficiaries of the compulsory portion. However, these must credit any gifts or bequests received from the testator against this amount. To determine the available portion, all goods belonging to the deceased at the time of death must be taken into account. The debts must be deducted from the mass of the goods. The goods which were sold by way of donations must also be determined fictitiously.
6 Requirements for the formal validity of the will
Italian law distinguishes between orders for universal succession and orders for individual succession. Testamentary dispositions, irrespective of the exact wording or designation used by the testator, are to be regarded as universal succession if they concern the entire estate or a portion thereof. The other dispositions lead to individual succession and confer the status of legatee. However, the designation of one or more property does not preclude the appointment as heirs if it transpires that the testator intended to transfer the above-mentioned property as a share of the property. With regard to the requirements for the formal validity of a will, a distinction must be made between a will written in one’s own hand and a notarial one.
6.1 Testament written in one’s own hand
The testament written by the testator must be written, dated and signed completely by hand. The signature must be affixed at the end of the dispositions. The date must indicate the day, month and year.
6.2 Notarial testament
The notarial will can be public or secret.
6.2.1 Public testament
The public testament shall be recorded by a notary in the presence of two witnesses. The testator explains his will to the notary in the presence of the witnesses, which is written down by the notary. The will must indicate the place, date of acceptance and time of signing and must be signed by the testator, the witnesses and the notary.
6.2.2 Secret testament
The secret will can be written by the testator or by a third party. In the first case, it must be signed by the testator at the end of the dispositions. If the will is written in whole or in part by a third party or by mechanical means, the testator’s signature must be affixed to each half sheet. The paper on which the dispositions are written or any envelope must be sealed with a stamp so that the will cannot be opened or removed without breakage or alteration. The will must be given to the notary before two witnesses by the testator, who declares that the paper contains his will. A deed of acceptance of the will must be written on the paper or envelope, which must then be signed by the notary, the witnesses and the testator.
6.3 Invalidity of the will
A will is null and void in the following cases:
- in the case of a will written by hand: if it was not written by hand or if the signature is missing;
- in the case of a will drawn up by a notary: if the written version of the testator’s declarations by the notary is missing or if the will has not been signed by the notary or the testator.
The will may be declared null and void by any interested party on the basis of any other formal error. A secret will which does not satisfy the prescribed conditions has the effect of a will written by hand if it satisfies the requirements of such a will.