Applies to citizens of the U.S.A, Canada, UK, Ireland and Australia
Question: Do I need an Italian will to handle the Italian portion of my estate? I live in the UK, I am a British citizen, and I own an Italian property.
Answer: Under Italian law, it is not required to make an Italian will to address your Italian assets. In some cases it is not even advisable. In other circumstances it is essential to protect your interests.
Whether you need to have an Italian will or not depends on your specific case circumstances. Here is the LIST.
Italian-International Inheritance Legal Aspects
Applies to citizens of the USA, Canada, the UK, Ireland and Australia
Here are the key legal aspects of international inheritance cases:
a) Under Italian law, a foreign will can be used to govern the inheritance of Italian assets. A foreign will means that it is in a foreign language and/or in a format different from the Italian one.
b) Under Italian law, a testator can elect a foreign law to govern the succession of the Italian assets, under the condition that the chosen law is the national law of the testator at the time of choice or of death.
c) The will must also include a Governing Law Clause through which you choose the law that will apply to your inheritance and provide sufficient legal ground for it to apply.
d) A foreign will shall not conflict with Italian public policy. This means that the foreign will cannot go against the founding principles of Italian law. It is important to note that Italian Forced Heirship rules are not protected by public policy.
e) The will must also include specific terms to ensure it does not conflict with previous wills. It must also address any other particular wishes and personal circumstances, as necessary.
What if There is No Will for the Italian Estate?
If neither a foreign nor Italian will has been executed, or if a foreign will does not include a proper governing law clause, the law applicable to the succession of Italian assets would depend on several circumstances.
In conclusion, when drafting your will you can chose the legislation of your citizenship to govern the succession of your Italian assets. This allows for the inheritance of your Italian property that is owned by a foreign citizen to be regulated by the applicable foreign law. Italian authorities would then execute the non Italian will. Consequently, you do not need to draft an Italian will for your Italian property as its transition during an Italian inheritance proceeding can be regulated by your foreign will.
Surprisingly, making an Italian will would often imply higher costs than a foreign will. There would also be a higher cost for the Italian inheritance claim process, due to the legal requirements of authentication, publication and registration of Italian wills. However, in some cases, it is advisable to adopt an Italian will even if you have a foreign will. For example, making an Italian will only for the Italian estate might make sense in some circumstances, for example when a person has a complex home estate planning structure applicable to assets outside of Italy. Additionally, an Italian will might be advisable when there are some family circumstances that require a higher level of protection.
The Italian lawyers of Studio Legale Metta have successfully worked on hundreds of inheritance matters for non Italian testators with properties located throughout Italy. Some inheritance procedures were regulated by foreign wills, some of them by Italian wills and for some other situations we recommended to have both, a home country will and an Italian will. Other successions were executed according to the intestate applicable laws (in Italian “successione legittima“), which apply when the deceased did not draft any will.
Discuss with our experienced lawyers your personal case circumstances and wishes to determine the most effective strategy that fits your needs.
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