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Does my foreign Will cover my Italian property on my death?

By Gareth Horsfall - Topics: Italy, Uncategorised, Wills
This article is published on: 2nd July 2015

In May I held a joint event nr Lucca, with a firm of Anglo/Italian lawyers called Studio Legale Internazionale Gaglione.  They are a firm I met whilst in London presenting at The Place in the Sun event.  I was impressed by their knowledge but more importantly their long term view of the Italian legal profession and their moves to proactively model their business accordingly.

This swayed me into giving them a chance to present at a joint event and I have to say that it went very well indeed.  All the participants gave excellent reviews for the speakers and hopefully the issue of preparing a will, or not, for these Italian property owners became a little more understandable.

In an effort to provide you with the information I thought I would write a summary.  However the event itself was far too detailed and technical to give a full synopsis of the morning, but here are the highlights:

Should I make an Italian Last will and Testament as an Italian property owner or is it covered by the will in my home country?

Well the simple answer is that the will ‘might’ be covered by your home country will.  But as is always the case in legal matters the situation is not exactly that straight forward.

Let’s take the 3 types of Italian will to start with.

1.  THE HANDWRITTEN WILL (also known as the holographic will)

Key Points

It must be 100% handwritten
It must be signed and dated

A handwritten will is as simple as that.  However, there are things to be careful of which were explained.

*  The hologrpahic will is very easy to do, but just a bit too easy.  If somebody contests it, this may lead to court proceedings in which the handwriting has to be examined for authenticity.

*  This type of will could be lost, burnt, destroyed or stolen very easily and therefore it is wise to have more than one original. A possibility is to give one or more originals to the heirs.

*  Any new will made after the date of the previous makes the oldest version invalid.  Therefore, if you update the will it is wise to destroy old copies.

*  You can add codicil’s (amendments) to this type of will, but it is preferential to add the wording on the same document in your own handwriting.  Adding on separate sheets of paper can cause confusion and questions over the validity of the additions.

*  NO witnesses are required

*  No legal wording is required

*  And lastly, and very importantly it is much better if the will is written in Italian.  Roberta Moretti pointed out that a UK will (as an example) would stand in Italy for a UK domiciled individual.  However a UK will is made under UK law and it could cause some impracticalities when trying to apply it in Italy.  The biggest question of course is the cost of making a will in Italian, but the cost of having a UK will translated and made public through an Italian notary would far outstrip the cost of making an Italian will in the first place.  And at approx €500 + for an Italian will (the cost rises depending on complexity of circumstances) then it is probably worth it.

2.  A PUBLIC WILL
This is a will that is made in front of a notary public in Italy. You will require 2 witnesses and have to pay taxes on the will (approx €200 + Notary fees)

*  This type of will would not normally be used where you expect multiple changes to your will during your lifetime as each change requires payment of the relevant taxes.  In addition, each change must be witnessed.

*  If you were to make a handwritten will after making a Public will then the Notary would ultimately have to define which was the last will made after the public one.  More complications which cost time for the beneficiaries of your estate and money to pay the notary and taxes

*  If the testator (you) does not speak Italian, the Notary will need two Witnesses who speak English to make sure that the testator is aware of what the notary reports on the will.

3.  A SECRET WILL
This is a very uncommon and rarely used will, even by Italians.  But it can be typed and written by a third person and 2 witnesses are required.

The notary keeps the will in an envelope and the contents are not disclosed.

This is so rarely used in Italy that it is only worth a quick mention, but it was explained that this might be used in those circumstances where a small community have an interest in knowing the wishes of someone in a village and therefore that person wants to keep those wishes secret.

Those are the 3 types of will and some interesting points that came out of the discussion.

SUCCESSION RULES
The rules of forced succession in Italy are always an issue that cause confusion. These rules apply on your Italian property when you die only if the beneficiaries live in Italy.

*  If the beneficiary is NOT resident in Italy then the rules of forced heirship do not apply to them. I,e the property/asset can be distributed in whichever way you wish. (assuming that the laws of the country in which they live do not apply forced heirship rules).

*  Of course, if there are beneficiaries who live in Italy and those that live in another country then Italian law regarding the Italian resident beneficaires will apply first.

*  Whatever is written in the will can be challenged by a resident or NON resident beneficiary of an Italian asset (it depends on the reason of the challenge). This is worth consideration if you have family members in Italy and overseas. Also remember that forced heirship rules spread as far as nieces and nephews.

*  Family members who you have no further contact with can claim on your estate. (i.e non divorced spouses or estranged family members)

*  You have 10 years to challenge a will.

So what can you gain from this information?  The general upshot of the meeting was that Italian law is too complicated to leave to chance. Although you may be able to apply your foreign will to your Italian asset, it is likely, depending on your circumstances, that the executors/ beneficiaries of your estate/ property will have to jump through hoops to try and sort matters out which could have been dealt with before.

IN BRIEF:
Make sure you seek the correct legal advice and plan your estate carefully.

I learnt a lot from the meeting and am going to now get my affairs in order as a result.  If you would like an introduction to Roberta or Giuseppe at Studio Legale Internazionale Gaglione then just send me a quick message and I can introduce you to them.

Article by Gareth Horsfall

Gareth HorsfallIf you live in Italy and or have financial interests in Italy you can contact Gareth Horsfall directly on: gareth.horsfall@spectrum-ifa.com to request more information about how he may be able to help you. Alternatively you can complete the form below and a message will be sent to him. If you would like to read more about Gareth's work you can follow his blog on tax and financial planning in Italy HERE

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