The English text of the Proposal for this new Regulation has just been published. This will put to rest most of the dispute and conflict between different European laws on succession.
I have recieved this query which I am posting to start off a debate perhaps with people in similar situations:" I am resident in Italy as from April this year/wife becoming resident later this year.
This was a question from another member in another thread, I though it was worth starting a discussion on this point:"I understand if you are renting your property to a person who is elderly(or maybe there is no age limit) you cannot force them t
The 2005 Green Paper on Wills and Succession recommended that the conflicting succession rules in many European countries should be harmonised by a new EU Regulation.A Regulation is a European law which is directly applicable to all member states,
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
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. 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
Hi Paolo, It is preferable, but not essential, to make a separate will in Italy. Your English will does not have to be procuced in Italy, but your heirs would need to obtain probate in the UK first (if there are assets in the UK) and then a certified copy of the Grant of Probate would be produced in Italy. When the new European Regulation is in force, it will be less important to have separate wills in different countries, as a person's entire estate will be dealt with by a European Certificate of Inheritance.
Doyle You can only ask for a copy of the Probate documents (Dichiarazione di successione) in Italy from the Agenzia delle Entrate if you are an heir or are properly authorized. You could find out what properties were inherited by your sister from her husband by searching in the Land Registry. If your brother-in-law left a will this should have been published and a copy could be found in the Central Notarial Archives. You could instruct a Notary to carry out a search. If he died without a will his estate will have been divided between his wife and any children. If you believe your sister is hiding the true picture of her financial affairs, you would need to instruct your lawyer in Ireland to take this into account in the settlement, and perhaps offering her a lower share of the estate would persuade her to disclose the documents you need to see. You might find, however that your brother in law made gifts to her before his death, so these would not be recorded as part of his estate. It may be on paper that what she says is true. Charlotte Oliver
Yes this witness was an Albanian who apparently was all over the place in court, and perhaps not given that much weight. But he was a key witness from the moment of the arrests. I found it on an American website here. http://www.truejustice.org/ee/index.php?/tjmk/report_from_the_courtroom_how_saturday_went1 The tramp who saw Amanda and Sollecito on the night was also discredited by the defence (who of course may have had a good point) but by all accounts he was abolutely steadfast in his evidence and came across as articulate precise and intelligent, and what he says contradicts their (Well Amanda's second) story that they were at home together all night. There was also a student was saw all three together on the night who backs up the tramps account. Charlotte
I used to practice as a criminal lawyer in London and was involved in defending several murder suspects at the Old Bailey. The question I was always asked was "how can you defend someone if you know they are guilty". Well if they tell you they are not, what ever you believe, you detach yourself from your own view and pick apart the evidence. Everyone has a right to a fair trial and their lawyers should leave no stone unturned in fighting their defence. These Defendants had the best lawyers in Italy representing them. Despite that, it is possible that the court could have made mistakes which led the jury to consider evidence which in the UK perhaps would have not been allowed. For example, Amanda's first story to the police that she had been at the house and heard the screams was made without a lawyer, she says after being beaten up. That interview should maybe have been excluded as inadmissible, but it was played on a full screen TV to the jury, and certainly contradicted her later story. I have read a lot of accounts of the evidence on Italian and US websites, and I think this was skimmed over in the media. There were a number of witnesses who saw Amanda, Raffaele and Rudy, one who was threatened in his car by Amanda brandishing a knife. Apparently the best evidence from from a very well spoken and intelligent tramp who was convinced he saw Amanda and Raffaele near the scene when they claimed to have been at home together all night. There were neighbours who heard two sets of footsteps running away. When the judge's written verdict comes out we will for the first time have the full picture of how each piece of evidence was presented to the jury and conclude whether there was enough evidence to have convicted. Whether or not a UK jury would have found that they were guilty beyond reasonable doubt is another matter - maybe a different jury would not have done on exactly the same evidence. But even in spite of the media reporting I think they had a fair trial.
Postmac - you are right - this is a typical ping pong situation and there is no definitive answer. But my view, which is shared with many other lawyers and Notaries in Italy, is that if your will expressly states the law that should be applicable to your succession, this can be put into effect by your heirs. Therefore Italian law will respect your wishes that substantial Irish law alone should apply to your worldwide estate, and not get involved in any discussion of immoveable and moveable property. When the new Regulation comes in, the default law will be the law of your habutiual residence, no longer nationality. So it will still be important to expressly state the law you wish to apply to your succession. Charlotte
Dear Capo Boi, thanks for joining in this debate. I don't agree with your views however. There are no EU rules on succession at the moment, there is only a proposal for a Regulation not yet in force. Each country's own set of private international law rules determines the applicable law to succession. Domicile is not always the prevailing factor. Also, the concept of domicile is different under the laws of each country. You do not need to be an Italian citizen and have an Italian passport to be domiciled in Italy (according to the UK choice of domicile rules anyway). Ping pong has nothing to do with inheritance tax. One enormous difference between UK and Italian succession laws (one based on common law principles the other on Roman law and the Napoleonic codes, both systems developing on separate lines over thousands of years) is that UK follows the principle of scission (that is it treats immoveable and moveable property differently, whereas Italian law favours a "unity of succession" that is the law of "one country" being chosen to govern a person's estate, whereever their assets are. This latter principle is also contained in the new proposed Regulation. Charlotte
Italian law states that the law of your nationality will govern your succession, UNLESS you have expressly stated in your will that you wish for the law of the country of your residence to apply. So you could choose for either Italian or Australian law to govern your succession.You could make a will in the UK, in Australia or in Italy. If you are based in Australia and do not have plans to travel to Italy, where you could lodge a public will with a Notary, you should probably make the will in Australia. If you can see an Italian lawyer there you could draw up a bilingual will so that the interpretation is not left to a translation into Italian made after your death.Charlotte
I agree that the 7 year rule is a red herring. This relates to potentially exempt (from inheritance tax) transfers ie gifts and applies to those who would otherwise be subject to paying tax in the UK.Once the property given in donazione is sold to a third party, it cannot be reclaimed. The problem will lie between the heirs. One of the heirs could claim that the heir who was given the property pay back into the estate the value of the property they received. These rules are set out in the Italian Civil Code Art 737 - 751 "Collazione" .The property could not be reclaimed from yourselves or from the original buyer who bought from the donee.I agree the waiver is not binding, but the only person who could be sued is the daughter herself.Please do get another opinion in writing or seek further clarification from your lawyer on the law I have quoted here, and also from the Notary. Remember that as buyer it is up to you to choose a Notary, so make sure that the sale is going to be witnessed by a Notary who is genuinely reputable in your area, as many Notaries do make mistakes and can also be negligent. Do not always accept a Notary recommended by an Agent or the Seller. Charlotte
Comments posted
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
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. 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
Hi Paolo, It is preferable, but not essential, to make a separate will in Italy. Your English will does not have to be procuced in Italy, but your heirs would need to obtain probate in the UK first (if there are assets in the UK) and then a certified copy of the Grant of Probate would be produced in Italy. When the new European Regulation is in force, it will be less important to have separate wills in different countries, as a person's entire estate will be dealt with by a European Certificate of Inheritance.
Doyle You can only ask for a copy of the Probate documents (Dichiarazione di successione) in Italy from the Agenzia delle Entrate if you are an heir or are properly authorized. You could find out what properties were inherited by your sister from her husband by searching in the Land Registry. If your brother-in-law left a will this should have been published and a copy could be found in the Central Notarial Archives. You could instruct a Notary to carry out a search. If he died without a will his estate will have been divided between his wife and any children. If you believe your sister is hiding the true picture of her financial affairs, you would need to instruct your lawyer in Ireland to take this into account in the settlement, and perhaps offering her a lower share of the estate would persuade her to disclose the documents you need to see. You might find, however that your brother in law made gifts to her before his death, so these would not be recorded as part of his estate. It may be on paper that what she says is true. Charlotte Oliver
Yes this witness was an Albanian who apparently was all over the place in court, and perhaps not given that much weight. But he was a key witness from the moment of the arrests. I found it on an American website here. http://www.truejustice.org/ee/index.php?/tjmk/report_from_the_courtroom_how_saturday_went1 The tramp who saw Amanda and Sollecito on the night was also discredited by the defence (who of course may have had a good point) but by all accounts he was abolutely steadfast in his evidence and came across as articulate precise and intelligent, and what he says contradicts their (Well Amanda's second) story that they were at home together all night. There was also a student was saw all three together on the night who backs up the tramps account. Charlotte
I used to practice as a criminal lawyer in London and was involved in defending several murder suspects at the Old Bailey. The question I was always asked was "how can you defend someone if you know they are guilty". Well if they tell you they are not, what ever you believe, you detach yourself from your own view and pick apart the evidence. Everyone has a right to a fair trial and their lawyers should leave no stone unturned in fighting their defence. These Defendants had the best lawyers in Italy representing them. Despite that, it is possible that the court could have made mistakes which led the jury to consider evidence which in the UK perhaps would have not been allowed. For example, Amanda's first story to the police that she had been at the house and heard the screams was made without a lawyer, she says after being beaten up. That interview should maybe have been excluded as inadmissible, but it was played on a full screen TV to the jury, and certainly contradicted her later story. I have read a lot of accounts of the evidence on Italian and US websites, and I think this was skimmed over in the media. There were a number of witnesses who saw Amanda, Raffaele and Rudy, one who was threatened in his car by Amanda brandishing a knife. Apparently the best evidence from from a very well spoken and intelligent tramp who was convinced he saw Amanda and Raffaele near the scene when they claimed to have been at home together all night. There were neighbours who heard two sets of footsteps running away. When the judge's written verdict comes out we will for the first time have the full picture of how each piece of evidence was presented to the jury and conclude whether there was enough evidence to have convicted. Whether or not a UK jury would have found that they were guilty beyond reasonable doubt is another matter - maybe a different jury would not have done on exactly the same evidence. But even in spite of the media reporting I think they had a fair trial.
Postmac - you are right - this is a typical ping pong situation and there is no definitive answer. But my view, which is shared with many other lawyers and Notaries in Italy, is that if your will expressly states the law that should be applicable to your succession, this can be put into effect by your heirs. Therefore Italian law will respect your wishes that substantial Irish law alone should apply to your worldwide estate, and not get involved in any discussion of immoveable and moveable property. When the new Regulation comes in, the default law will be the law of your habutiual residence, no longer nationality. So it will still be important to expressly state the law you wish to apply to your succession. Charlotte
Dear Capo Boi, thanks for joining in this debate. I don't agree with your views however. There are no EU rules on succession at the moment, there is only a proposal for a Regulation not yet in force. Each country's own set of private international law rules determines the applicable law to succession. Domicile is not always the prevailing factor. Also, the concept of domicile is different under the laws of each country. You do not need to be an Italian citizen and have an Italian passport to be domiciled in Italy (according to the UK choice of domicile rules anyway). Ping pong has nothing to do with inheritance tax. One enormous difference between UK and Italian succession laws (one based on common law principles the other on Roman law and the Napoleonic codes, both systems developing on separate lines over thousands of years) is that UK follows the principle of scission (that is it treats immoveable and moveable property differently, whereas Italian law favours a "unity of succession" that is the law of "one country" being chosen to govern a person's estate, whereever their assets are. This latter principle is also contained in the new proposed Regulation. Charlotte
Italian law states that the law of your nationality will govern your succession, UNLESS you have expressly stated in your will that you wish for the law of the country of your residence to apply. So you could choose for either Italian or Australian law to govern your succession.You could make a will in the UK, in Australia or in Italy. If you are based in Australia and do not have plans to travel to Italy, where you could lodge a public will with a Notary, you should probably make the will in Australia. If you can see an Italian lawyer there you could draw up a bilingual will so that the interpretation is not left to a translation into Italian made after your death.Charlotte
I agree that the 7 year rule is a red herring. This relates to potentially exempt (from inheritance tax) transfers ie gifts and applies to those who would otherwise be subject to paying tax in the UK.Once the property given in donazione is sold to a third party, it cannot be reclaimed. The problem will lie between the heirs. One of the heirs could claim that the heir who was given the property pay back into the estate the value of the property they received. These rules are set out in the Italian Civil Code Art 737 - 751 "Collazione" .The property could not be reclaimed from yourselves or from the original buyer who bought from the donee.I agree the waiver is not binding, but the only person who could be sued is the daughter herself.Please do get another opinion in writing or seek further clarification from your lawyer on the law I have quoted here, and also from the Notary. Remember that as buyer it is up to you to choose a Notary, so make sure that the sale is going to be witnessed by a Notary who is genuinely reputable in your area, as many Notaries do make mistakes and can also be negligent. Do not always accept a Notary recommended by an Agent or the Seller. Charlotte