One question I always hear from non-Italian property clients is: Do I need an Italian will?
I often surprise them with the quick and simple answer: No.
Many think that it is necessary to have an Italian will to address their Italian property inheritance, but, the truth is, an Italian will isn’t necessary. A will is recommended, but it doesn’t have to be Italian. This isn’t to say that a non-Italian can’t have an Italian will; he absolutely can. It’s just that he doesn’t need one. And here’s why:
An Italian will isn’t needed because the inheritance of Italian properties is, by default, regulated by the national inheritance law of the deceased party. This means that if, for example, an American owns property in Italy, when she dies, American inheritance law applies to the property. Therefore, an American will would cover the Italian asset thus making an Italian will unnecessary. This is under typical conditions of course.
However, an important aspect to note is that in common law countries such as the UK, the home country international law would typically defer to Italian inheritance law to regulate the inheritance and the distribution of the Italian property. What does this mean? If a UK citizen dies while owning Italian property, Italian law says that the UK inheritance law would apply. However, UK law pushes back to Italy and says that Italian inheritance law applies. This back and forth can continue and thus delay the inheritance proceedings.
At this point, one might think that a home country will can address the home country assets and an Italian will can address exclusively the Italian assets. But, this is not necessarily true. A situation such as this might be interpreted in several ways. The choice of drafting an Italian will and within it using the Italian language, the Italian legal style, and an Italian legal advisor (involvement of an Italian notary is recommended) might lead to the interpretation that it was an implicit choice by the deceased to choose Italian inheritance law over the home country inheritance law.
An Italian will means that the Italian inheritance laws of distribution apply to the Italian property. The Italian laws are not as liberal as many other countries and there are specific percentage allocations that go to specific family members. In Italy, it is not possible to leave your estate to Fluffy or the mailman, unless you no longer have a spouse, child or parent. Therefore, an Italian will could possibly end up confusing the issue and impede the deceased’s wishes from being carried out.
For a visual comparison of the Italian and UK inheritance systems, please look at our Italian intestacy chart and UK intestacy chart. The charts depict the main transitions of an estate according to each country’s laws of inheritance and distribution.
To help my clients avoid facing a legal tennis match between their home country and Italy, I typically recommend that we simply modify their home country will by adding a clause which expressly statesthat they are electing for their own country’s inheritance legislation to apply to their Italian property. In this way, they do not need an Italian will to address their Italian assets.
Now, let me clarify that adding such a statement to the home country will is not absolutely necessary. I have my clients adding it as a security element, to avoid risk of confusion, future misinterpretation, etc. That said, I have also smoothly executed non-Italian wills that did not include such a statement. These wills had general terms such as “the rest of my estate”, or “all my estate”, under which the Italian property was included. The problem is that this leaves room for interpretation. And in legal matters, it is always better to eliminate possible alternative interpretations. To help, I’ve drafted a sample of a basic non-Italian will which would be valid in Italy to address an Italian property. You can download it here.
I also tell my clients not to bother with an Italian will for two further reasons very important to all of us: time and money. An Italian will simply implies more costs and additional time. There is the drafting, the authentication, the registration, the execution; in one word, bureaucracy. And we all know what that means when we’re talking about Italian bureaucracy. In my experience of executing both foreign and Italian wills, the process for foreignwills hastypically been substantially cheaper.
Let me be clear, a non-Italian can certainly have an Italian will to address an Italian property or Italian assets. It is simply that this will not benefit the inheritors. It will however definitely accomplish two things: 1) take some money out of your pocket when you pay to establish it, and then 2) take some money out of your inheritors’ pockets when they pay to execute it.
In conclusion,there are three important points to remember about Italian wills:
A non-Italian can have an Italian will;
Foreign wills are fully applicable in Italy;
It costs less not to have an Italian will.
For further information regarding Italian inheritance matters, please click here.
Please check this space on the ItalyMag website regularly as, on a bimonthly basis, we will be publishing editorials on various aspects of Italian property.
Nick Metta is a partner at the Italian law firm, Studio Legale Metta. Nick is head of the firm's international department which addresses matters of Italian law involving international parties in areas such as Italian real estate, property financing and Italian inheritance law.
The Italian law firm Studio Legale Metta is a boutique firm of Italian Attorneys. Established more than 120 years ago, the firm handles domestic and international casework throughout Italy.
This article does not represent legal advice. Users are encouraged to seek independent counsel for advice concerning their individual needs for legal assistance.
Studio Legale Metta has paid for this article. Copyright of Studio Legale Metta, 17 February 2011.