Question. I am a British citizen and I own an Italian property. Do I need an Italian will to handle the Italian portion of my estate?
Answer: It is not required to have an Italian will. In some cases it is not even advisable. Of course you can have an Italian will though. The answer to your specific situation depends on your (1) personal circumstances, (2) nature and (3) entity of your estate, your (4) family situation and (5) your wishes.
In a British-Italian succession the following rules apply:
a) Italy accepts that foreign wills (e.g., in a foreign form, in a foreign language) are used to govern the succession of Italian assets;
b) Italy accepts that a testator elects a foreign law to govern the succession with reference to Italian assets, under the condition that the chosen law is the law of habitual residence of the testator at time of testator’s death;
c) When making a British will to be used in Italy, if you wish the British law to apply to the Italian estate too, mention in the will that you live in the UK and are a British citizen; also mention your home address;
d) Add within the will a Governing Law similar to the following one: “This will shall be construed in conformity with the law of [Engalnd and Wales], regardless of where the properties subject to it are situated. I elect the domestic law [Engalnd and Wales] to apply to my entire succession, because of my UK habitual residence and UK nationality, even in the event that at the time of my death I will no longer be a UK resident and even if I will be a resident of Italy, or if I will have the Italian nationality or any other nationality". This is just a general wording and shall not be adopted without proper legal review of all applicable case circumstances.
e) A foreign will shall not conflict with Italian public policy, i.e., Italian law founding principles. Forced heirship rules are not protected by public policy.
If there is no will, the succession of Italian assets is regulated by the national inheritance law of the deceased. However, common law countries such as the UK, the U.S. and Australia, say that the law applicable to real etsate rights is the one where the real estate is geografically located. As a result, the domestic Italian inheritance law would in your case be the one regulating the succession and the distribution of the Italian property.
In conclusion, it is sufficient to to state in a will that the testator would like the home country inheritance legislation to govern the inheritance. The inheritance of an Italian property owned by a UK national would be regulated by the applicable UK law. Italian authorities shall then execute the non Italian will. Consequently, you are not required to have an Italian will for your Italian property as its transition during an Italian inheritance proceeding can be regulated by a foreign will.
An Italian will, as opposed to a UK will, would typically imply higher costs to be preparedand and higher cost for the Italian inheritance claim process, due to the formalities required in relation to the autentication, publication and registration of Italian wills.
The Italian lawyers of Studio Legale Metta have succesfully worked on hundreds of inheritance matters regarding non Italian testators, involving properties located throughout Italy. Some inheritance procedures were regulated by foreign Wills, some of them by Italian Wills and some according to the intestate applicable rules (in Italian "successione legittima"), which apply when the deceased did not leave any will. The processes regulated by non Italian wills have typically been substantially cheaper than the ones regulated by Italian wills.
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