Charlotte Oliver's activity

When you refer to the "leggittima", you must be aware that the category of heirs, and their shares, are different in Italian law depending on whether or not there was a will.  For example, if a person died intestate, and left only a husband and siblings, the siblings would have a claim to one third as "eredi leggittimi". If a person had made a will, the husband in Italian law would be entitled to one half the estate (if he had been left less in the will), but the siblings to nothing. However, the starting point for all British citizens should be English law (unless they have dual nationality and one of those nationalities is Italian). An English will can be properly used to transfer property in Italy to the chosen heirs in accordance with English law. This is because Italian law states that a persons nationaity is the applicable law governing their succession.   Therefore in answer to your question, it is perfectly possible for a parent to leave a property to their child and not the spouse. However, English law states that the law of succession shall be the law of the place where immoveable property is situated. This is a conflict which at the moment has no clear resolution, but in practice is noly a concern if an heir (who would have a claim in Italian law) decides to challenge a succession in the courts, AFTER the property had been transferred to the heirs named in the will, or those claimed to be the heirs under the English law of intestacy.  Under the above example the spouse could claim she had rights in Italian law, and the courts would have to decide which law prevailed and whether the will could override her share.  There is no decisive caselaw on this point in Italy.   However interesting to note that in two similar Spanish cases, the courts have agreed that a British testator should have the freedom to make a will to leave property under English law, overriding the rights of the "leggittimi".  The law will change in the years to come with the EC Regulation on Succession.  Charlotte Oliver

I think a will is a very personal document and every individual's case is different, so its not possible to have one answer that applies to everyone.  In Karen's case as a British citizen who has already instructed a lawyer to draw up a will in the UK, she can re-write and execute her English will in Italy, written in the English language. She could give the original to one of her Executors for safekeeping, keep it at home (at her risk!),  or could "deposit" it with a Notary as a "secret will". After her death her heirs would need to translate and "publish" this will.   Beware many Notaries may not be familiar with foreign wills and may not always accept that a foreign will can be published.  It would be useful maybe to share on the forum Notaries that have experience in dealing with wills/trusts and successions of foreign nationals and in particular in working in English - Giuseppe Ramondelli in Rome and Francesco Steidl in Florence are two who I would recommend highly.  Karen's case aside, the general rule should be, if a person is living permanently in Italy and has no assets in the UK, and has a particular family situation that makes it important to state wishes in a will that would only be valid in English law ie leaving the entire estate to a spouse and not to the children, they should instruct a Notary to draw up a public will in Italian (or bilingual).  This is expensive, but takes away the need and costs for the heirs later to translate or publish the will or explain the implications of a foreign will, and ensures that there is a document stored in the National archives which will never be lost or destroyed (it happens!) or open to challenge over its validity. Charlotte

Hi Karen, Marriage does revoke a previous will, according to English law, UNLESS you stated in that will that you were intending to marry a named person! It would not matter that the will was in your maiden name. You should therefore assume these previous wills have been automatically revoked and update your wills now. You could use the same text, and now specifying that you want English law to apply. I am assuming that the contents are accurate and have already been checked by a lawyer. You should state that all previous wills are revoked. The new wills can be signed and dated in Italy in the presence of two witnesses in the form of Englsih wills. It would be worth deposting these wills with a Notary Public for safekeeping.  Charlotte Oliver

Karen, the form of your will is valid if it made in the Italian form (ie public or holographic) as you are resident here or if you sign it here, but a simple English form will (ie signed in the presence of two witnesses) would also be valid as you are a British national. You therefore can make a will (in any of the valid forms and in either country) stating your wishes and stating that you wish English law to apply to your estate. After your death this will can be attached to a declaration of succession in Italy and your property would be transferred to your named heirs ie your husband or your son if he had died before you.  Bear in mind the risks of making no will - if your husband makes no will and the new EU Regulation comes into force (probably 2013 or later) the law applicable to his succession will be the law of his place of residence ie Italy. So after that date Italian law would automatically apply and your husband's siblings would get a share of his estate (1/3). They are the "eredi leggittimi"in this case, they would not be heirs in the case of a succession where there is a will. The new EU Regulation also gives a person the choice to expressly state in their will that they require their national law to apply. Therefore if you make a will before or after the Regulation which states that you wish English law to apply, your wishes will be upheld and the siblings will not have a claim.   I hope this clears it up for you.   Charlotte Oliver  

Just a comment on Paolo's last comment,  a British citizen does not have to make an English will, but would have the choice...." A will shall be treated as properly executed if its execution conformed to the internal law in force in the territory where it was executed, or in the territory where, at the time of its execution or of the testator’s death, he was domiciled or had his habitual residence, or in a state of which, at either of those times, he was a national." I do agree that there is the option of having a second English will drawn up in the UK (which is sometimes useful if the first will contains long and complex trust provisions) which refers only to the Italian property, can be easily translated into Italian after death and can be used in Italy to transfer the Italian property without the need to send the Grant of Probate to Italy.    Charlotte  

  Sibillini If the UK consider you "deemed domiciled" in the uk at the time of your death, and that means if you were "resident" in the UK for at least 17 out of the last 20 years, yes your heirs would technically have to declare your worldwide assets for taxation in the UK. That means declaring the market value of assets in Italy on the Probate application. This has nothing to do with where you actually made your will. So in practice you might have to pay tax twice on Italian assets if you are still domiciled in the UK, although Italian tax is vitually nil in cases where the estate passes to the spouse or children, and if there is tax it is calculated on the valore catastale. If you do you can claim relief of what you have paid in Italy against the UK tax as there is a Double Taxation Treaty between these two countries. 

Your UK solicitor is wrong in her advice. An English will which does not contain any geographical restriction, or states"this will shall cover my worldwide property", is absolutely valid for a succession to property in Italy.  It is preferable in my experience to have a separate Italian will, especially if your spouse and children do not speak Italian, mainly to spare them confusion and delay after your death in dealing with the succession procedure in Italy where there is property involved. However it is not at all essential, especially in a case like yours where your heirs are your immediate family. I would not receommend attempting to write your own holographic will, and in any case as I have said it is not necessary. After your death your English will (and also a Grant of Probate in the UK) would need to be translated, legalized and deposited in Italy with a declaration of succession.  I hope this is helpful and puts your mind at rest. You can ask your solicitor to ring me! Charlotte Oliver

Hello Rick I have also sent you a pm, this is not a simple question that can be answered on the forum I am afraid.  Inheritance tax is not linked to nationality. Both Italy and the UK have different "residence" criteria for deteriming what taxes the heirs to an estate must pay on what assets. In the UK you will always pay IHT on succession to immoveable property (value of more than £325,000) where a Grant of Probate or Letters of Administration is required, even where a person is not resident or domiciled in the UK. In Italy there may be no inheritance payable at all where the estate is valued at less than 1 million Euro and passes to a descendant, but on succession to immoveable property there will be small registration taxes payable (which vary depending on whether the property can be claimed as "prima casa") in order to transfer property into the heirs names.   In answer to your particular question, if you declare property or funds in Italy after your parents death, you would not be taxed again when you transfer funds to the UK. Charlotte Oliver *PLEASE COULD MEMBERS POST ANY NEW SUCCESSION QUERIES IN A NEW THREAD*

Dear Russell, In theory, yes you can make a will expressly choosing English law to apply to your succession and leaving your estate to your wife.  You have to bear in mind however that there is a risk in the future that your children would challenge your will after your death, where either the UK or Italian courts would be competent to decide.   This challenge would be very difficult for them especially if you had left a clear "professio iuris" in your will, however until the new EU Regulation is in force it cannot be ruled out. They could have two grounds, firstly that under English conflict of law rules, immoveable property should devolve according to the law of the place where it is situated, and secondly arguing that you were also an Italian citizen (in spite of having dual nationality they may argue that your link with Italy were stronger) and therefore your succession should be governed in any case by Italian law and they would be entitled to a statutory share. Depending on what assets and property you have, you may want to consider making lifetime transfers to your wife. I hope the other posts in this group are helpful. Charlotte Oliver        

Dear Russell, In theory, yes you can make a will expressly choosing English law to apply to your succession and leaving your estate to your wife.  You have to bear in mind however that there is a risk in the future that your children would challenge your will after your death, where either the UK or Italian courts would be competent to decide.   This challenge would be very difficult for them especially if you had left a clear "professio iuris" in your will, however until the new EU Regulation is in force it cannot be ruled out. They could have two grounds, firstly that under English conflict of law rules, immoveable property should devolve according to the law of the place where it is situated, and secondly arguing that you were also an Italian citizen (in spite of having dual nationality they may argue that your link with Italy were stronger) and therefore your succession should be governed in any case by Italian law and they would be entitled to a statutory share. Depending on what assets and property you have, you may want to consider making lifetime transfers to your wife. I hope the other posts in this group are helpful. Charlotte Oliver