What constitutes the 'estate' of the deceased?

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02/19/2010 - 10:39


 Firstly Charlotte, thanks for your patience and invaluable advice on this forum. What a godsend for us newbies! My question is based on this set of circumstances: Wife - Australian citizen and resident, soon to be joint owner (as in Aus/UK law joint tenancy) of Italian real property as primary residence who has no children. Husband - British citizen but Australian permanent resident also soon to be joint owner of Italian real property as primary residence and who has children from a previous marriage. We're moving lock and stock and I understand that as a non-european I will be extended the same rights to live and work as my husband. Having read your posts on wills and nominating the national laws to apply and so on I feel informed but confused over what constitutes the 'estate' of the deceased. Are immoveable property (the house) and bank accounts held jointly part of it? Do they revert to the sole ownership of the other joint owner on one's death?

  Do you mean you are going to buy property in "comunione dei beni"?  If you buy jointly with your spouse in this way, on death the comunione is dissolved, and your half share passes along with the rest of your estate to your heirs.  A  jointly held bank account The law applicable to your estate is the law of your nationality: This means that Australian or English law on succession will decide who can be your heirs. In both cases there is the "freedom of disposition" principle that, if you make a will, you can decide who to leave your property to. You are not subject to the strict laws of "forced heirship" in Italy. The husband could make a will, for example leaving the share of the property to his wife, and could decide to leave other property to the children. However if he did not make a will the estate would pass to the spouse and any children under the law of intestacy.   Charlotte Oliver  

 Thanks Charlotte for the reply...but I'm still unsure as to what is up for grabs by the 'heirs' - whosoever they turn out to be - Firstly, can spouse A and B hold property jointly and wholly? - I don't know what this is called in italian, or even if what I descibe is possible but I mean "joint tenancy with right of survivorship (JTROS or JTWROS) is a type of concurrent estate in which co-owners have a right of survivorship, meaning that if one owner dies, that owner's interest in the property will pass to the surviving owner or owners by operation of law, and avoiding probate. The deceased owner's interest in the property simply evaporates and cannot be inherited by his or her heirs. Under this type of ownership, the last owner living owns all the property, and on his or her death the property will form part of their estate. Unlike a tenancy in common, where co-owners may have unequal interests in a property, joint co-owners have an equal share in the property." [http://en.wikipedia.org/wiki/Concurrent_estate] So on one spouse's death the 'commuione' isn't dissolved because both spouses owned the house entirely - no 'half shares' and the property (house) does not become part of the estate of the deceased. Does this happen in Italy? Or when one spouse dies does the house become part of the 'forced heirship' issue - the deceased spouse's children by a former marriage. Will the other spouse lose entire ownership  and be out on the street?   And I'm a bit confused about how to make a will that refects my intentions. If I die first my spouse gets (almost) everything and vice versa. Where do I make this will? And does it need to be translated 'officially'? Thanks        

 No it is not possible to jointly purchase property in this way in Italy. Spouses must purchase either in comunione dei beni (which dissolves on death) or separazione dei beni (which allows them to sell their respective share during their lifetime).  Italian law on matrimonial property does not allow the property to pass automatically to the spouse after death. As you are moving permanently to Italy I would suggest making an Italian will in a bilingual version with an English speaking Italian Notary. You could choose to leave the Italian property to each other in your will, expressly stating that English or Australian law should apply to your succession, which would allow you the "freedom of testamentary disposition", which is a basic principle of common law countries.  However, children of the previous marriage could potentially challenge this after their parent's death, and seek to argue (the very complex area of "ping pong" or renvoi) that Italian law should have applied to your Italian property.  International lawyers hold different views on the likelihood of this succeeding and there is no definitive caselaw or precedent.  My view is that any challenge is very remote and unlikely to succeed if brought in the Italian courts. If brought in the courts of the UK or Australia there is some chance a judge may rule Italian law should apply(which would allow the children to claim the value of half of the deceased's share of the property). You could avoid any future challenge by ensuring a fair disposistion between the children of your other worldwide property or assets.  I hope this answers your queries, but without the full facts it is difficult to give a comprehensive answer. The area of private international law on succession in Europe is extremely complex and at the moment there are no definitive answers. Please see other posts on the proposed European Regulation. Given the three nationalities involved, and the existence of children from a previous marriage, I would suggest you seek expert legal advice on this. Charlotte    

  Thanks Charlotte I am completely at my wit's end over this. We are supposed to be moving to Italy in May and I cannot bear even the remotest possibility that the joint ownership of our house could revert to someone else on the death of my spouse.  We have no other sizeable assets. My house is mine, bought with my money, not some grown-up children who I don't know. How can that possibly continue to be the law??? When I calm down I will look into obtaining legal advice as you suggest.  Is it wrong to ask you for a PM with some suggestions in Northern Tuscany? I don't know who else to ask.   Thanks