LEGAL ADVICE TO CLAIM YOUR RIGHTS INHERITANCE LAW IN ITALY
If you inherit an estate property or other assets in Italy, from an Italian citizen, and you get involved in a dispute, it must be settled according to the Italian law.
Before doing anything else, it is highly recommended that you ask for legal advice, since property inheritance is regulated by many different laws. It is essential to act quickly and duly to claim your rights, both before the court and against any other heirs.
Consider these examples…
If you are an heir, either by law or having been elected as such according to a will, and you materially possess or are using (in a general sense) an asset belonging to the inheritance, it might be burdened and you might risk your own patrimony unless you disclaim the inheritance within a strict three-month deadline starting from the day the person died.
Regardless of your country of origin, once you own a property in Italy, it will automatically be subject to the Italian law of succession. Be sure, then, to draft an Italian will if you do not want to lose everything due to your ignorance of the Italian inheritance law. For instance, without a will, in the case of an absence of heirs, according to Italian law, the hereditary assets in Italy shall be assigned to the Italian State.
It is incautious not to ask for expert advice when it comes to protecting your lifelong savings and assets.
The new EU Regulation No 650/2012
Anyone who has been involved in cross-border inheritance or estate planning will be aware that it is a complex process especially when someone owns property in more than one country. This is because the various assets in the same estate can be subject to the laws of different countries.
However Regulations (EU) No 650/2012 “on jurisdiction, applicable law, recognition and enforcement of decisions and acceptance and enforcement of authentic instruments in matters of succession and on the creation of a European Certificate of Succession” came into force on 17th August 2015 aiming at harmonising the differing, and sometimes conflicting, laws of the EU countries in relation to the succession of assets.
The intended effect of the new European Succession Regulations is to make things less complicated so that instead of different laws of different countries applying to different assets, just one country’s laws will govern the succession of all the assets in the deceased’s estate.
So which country’s laws will be applied?
The default position is that the law of the country in which the deceased has their habitual residence at the
time of death will apply and will govern the succession of the whole worldwide estate.
People will however be able to opt for the laws of the country of their nationality (or one of their nationalities if multiple) to apply to their estate instead by properly setting this out in their will.
The Regulations also state that the law chosen does not need to be the law of another EU Member State. This would therefore enable, for example, an Australian national who is habitually resident in Italy to choose Australian law to apply to his estate.
All EU countries has applied these regulations with the exception of the UK, Ireland and Denmark who have opted out. Although the UK is not a signatory to these regulations, the regulations are still applicable.
However because the UK has not opted in to the Regulations it is not bound by them or subject to their application. Therefore where a UK national who is habitually resident in Italy has chosen UK law to apply to his estate it may still be necessary to obtain a UK grant of probate to administer any UK assets.
After 17 August 2015, an English national (for example) will be able to create a Will that stipulates that English law is to apply to his/her entire worldwide estate, including property in other participating EU member states. As such, any EU member state which is a signatory to the regulation would be required not to apply its own succession rules to those assets, and apply English succession law instead.
A common question occurs about whether it is still necessary to make a separate will covering the assets of each country. Normal advice is always to seek the guidance of a properly qualified lawyer to advise you, as the position may be different dependent on each individual’s circumstances. There may also be additional benefits to having more than one will when it comes to the practicality of administering your estate.
The EU Regulations also provide for the issue of a European Certificates of Succession (ECS). This is a document similar to a Grant of Probate and provides proof of who is entitled to the assets of the estate. The ECS will be issued by the authorities of the participating Member State in which the deceased was habitually resident and will be recognized by all of the participating Member States.
For example, the beneficiaries of a Spanish National, who dies being habitually resident in France (with assets in France, Italy and Spain) will be able to deal with all the assets on the basis of the one Certificate which will be recognised not only in the country issuing it (France) but also (in this example) Italy and Spain.
It is generally recommended that foreign citizens owning assets in Italy draft an Italian Will. This will prevent significant difficulties that heirs might experience when transferring the ownership of Italian properties originally registered in the name of the testator.
Under Italian law, all foreign Wills must be authenticated by an Italian Public Notary before executing the probate. Although, generally speaking, Italy recognizes the validity of international Wills, it is advisable for a non-Italian citizen to draft an Italian Will if they own properties on Italian territory (house or land). Managing documents drafted in a foreign language (and governed by different legal jurisdictions) in Italy can raise a number of difficulties.
It is also worth bearing in mind that an Italian Will can speed up the administrative procedures to be carried out with Italian banks.
Bank accounts and bank deposits of the deceased will be frozen following the account holder’s death. The procedure to unfreeze them and obtain deposited funds can be annoying.
Heirs could be called upon to pay certain expenses from their own pockets in the meantime, for example, payment of utility bills.
A competent legal advisor can help you to draft a Will that complies with Italian law. This limits the effects of Italian legal succession and ensures that Italian property is disposed of according to the testator’s wishes and without violating Italian provisions regulating succession.