Probate and Succession in Italy represents the event through which the transfer of legal relationships, active and passive, from deceased to the heirs takes place.
When a person who owns assets in Italy dies, those assets must be distributed through succession, whether a will is present or not.
If a will exists, the laws regulating succession determine its validity. It can be revoked and/or modified with a new will or a declaration made before a notary.
In order to draft a will, it is necessary to be at least 18 years old and in control of their intentions and wishes.
In the event there is no will, the law determines the legitimate heirs. This category includes the spouse, the descendants, the ascendants (i.e. parents, grandparents), brothers and sisters, and other relatives up to the sixth degree. In some cases, the heirs acquire the right to the inheritance "for representation", replacing a parent, a grandparent or an uncle or aunt.
In the case there are no legitimate heirs, the goods pass to the State.
The law foresees a series of specific norms regulating the shares in favor of this particular category of heirs.
The Italian law on probate and succession
In Italy, succession is disciplined by article 456 of the Civil Code.
The transfer of assets of the deceased begins at the moment of the person's passing.
In order to be an heir, it is sufficient to be alive at the moment of the deceased's death. Being conceived could also be enough. However, the Italian law provides exceptions on this matter.
The law presumes that if no more than 300 days have passed between the death and the birth of a child, the new born is deemed to have been conceived before the death, unless proven otherwise.
There is an exceptional case in which the capacity to inherit is conceded to a person who has not even been conceived by the time of the deceased's passing. This circumstance is regulated by article 462, paragraph 3 of the Civil Code: a person may indicate a particular legacy in favor of the future child of another person. The indicated heir may receive only if the respective parent is still alive when the succession procedure starts.
Even if article 462 of the Civil Code does not refer to legal entities (i.e., societies, foundations, associations...), it is allowed for them to inherit goods of the deceased by means of a will.
Types of probate and succession in Italy
In Italy, there are three types of succession: Testamentary succession, Legitimate succession and Mandatory succession.
Testamentary succession
When the deceased has provided for the assignment of their patrimony to the respective heirs and/or legatees through a testamentary document;
Legitimate succession
When the deceased does not express a specific will concerning the assignment of their patrimony through a will, or in the event the will is declared void. In these circumstances, the Italian law provides for the individuation of the legitimate heirs within the relatives of the deceased. It intervenes also in the case that a will exists, but does not assign the entirety of the deceased's assets (residual function). In this particular case, the succession will be both legitimate and testamentary.
Mandatory succession
When the deceased disposes of their goods without acknowledging their legitimate heirs. In this case, the Italian law intervenes to guarantee the heirs of their legitimate share of the inheritance.
The European law on succession
In Europe, with regards to civil law, the subject matter of succession is currently disciplined by the EU regulation n. 650 of 2012, which has been applied to successions since August 17th, 2015. In an international society, in which successions with extraneous elements are common, the European Union has tried to overcome discrepancies between different sets of rules from national to nation. The discipline is uniform and is applicable both to European citizens and to non-Europeans citizens, in the case they habitually reside in a Member State.
In respect of transnational successions, the European law establishes which is the applicable law, allowing citizens to choose between the law of their country of citizenship or the law of their country of residence.
In the event the deceased does not indicate an applicable set of rules, the applicable law will be established in accordance with certain criteria. The regulation provides some useful parameters for determining the applicable law. Duration and quality of life of the deceased in a particular country are taken into consideration. For instance:
If the deceased had maintained a stable and close link with their country of origin – where they maintained family ties – despite continuous residence in a different country for professional reasons, the succession will be regulated by the law of the country of origin.
If the deceased has lived in several countries, but has kept their main assets in one particular country, the applicable law will be the law of this country.
Moreover, the EU regulation n. 650 of 2012 has introduced the European Certificate of Succession (ECS), a document published by the authority responsible for the succession procedure.
Fiscally, succession is regulated by the different countries' national norms. In some cases, relevance is given to bilateral conventions subscribed by them.
Why should I hire a lawyer specialized in Italian succession?
Due to the complexity of such cases, especially for clients who are outside of Italy, the assistance of a lawyer who specializes in succession is fundamental in order to correctly go through the procedures provided by Italian law, particularly in the hypothesis in which the heirs or creditors intend to contest the will. Furthermore, several pecuniary sanctions are to be applied in case of non-compliance with the aforementioned procedures in a timely manner.
The estate manager – who tends to be a relative or a trustworthy friend – will also need the assistance of a lawyer experienced in succession. In fact, the latter has the power to guaranty full conformity with what is indicated in the will and with the law.
What does a lawyer specialized in probate and succession in Italy do?
Our lawyers will clarify the due procedures and will ensure that they are completed within the time limits provided by law.
Our experience gives us the chance to deal with several disputes among relatives for the distribution of property.
We are able to ensure that your interests will be safeguarded, as well as the will of the deceased.
Our lawyers are able to take care of all paperwork and bureaucratic matters, such as:
- Drafting of the will in accordance with Italian law on succession;
- Informing creditors of the death and the beginning of the succession procedures;
- Collecting the necessary information in order to obtain required documents, such as those needed for liquid assets subject to succession, to be unlocked from bank accounts or financial portfolios;
- Presenting the declaration of succession within the time limits provided for by law.
The individuals who are obliged to present the declaration of succession in Italy are:
- The heirs (established by law or by will, even when they have not accepted inheritance yet, provided that they have not renounced their right to it) and the legatees, or their legal representatives.
- Those who entered into possession of the assets, in case of the absence of the deceased or declaration of presumed death.
- The managers of the legacy.
- The curators of the inheritances.
- The executors.
- The trustees.
In the event where more than one individual is obliged to present the sufficient.
Individuals who are exonerated from the succession
The declaration is not mandatory if the inheritance is devolved to the surviving spouse and to the straight-line relatives of the deceased, and the asset value does not exceed €100,000.00, and does not consist of real estate or rights in rem in immovable property. Such conditions may no longer be satisfied as a result of contingencies related to the inheritance.
In case of dispute between heirs or creditors, asset management may be delayed, with subsequent pecuniary sanctions. A lawyer specialized in succession can help avoid such sanctions and instruct the manager of the property on how to proceed.
Individuals who are excluded from succession
The right to benefit from succession or the capacity to inherit may be lost by individuals who are deemed undeserving. This condition is reserved for individuals who have perpetrated "particularly grave actions against the deceased or against their relatives" (art. 463 of the Italian Civil Code).
Undeserving to inherit may be:
- Those who have intentionally killed or have tried to kill the deceased or their relatives (specifically: the spouse, a descendant, or an ascendant) and their criminal liability has not been excluded by Italian criminal law;
- One who has perpetrated, against the aforementioned individuals, a conduct that is lawfully comparable to the homicide;
- One who has been accused and sentenced for making false statements against one of the aforementioned individuals. In particular, the false statement must have produced the risk of a life sentence or imprisonment for at least three years;
- The parent that lost – and never reintegrated – their parental responsibility on the deceased son or daughter;
- One who has maliciously, intentionally or forcefully induced the deceased to modify his will or prevented them from making a will. Nonetheless, whoever destroyed, altered, falsified or concealed the testamentary document is also deemed excluded.
One who makes a will may choose to "forgive" the undeserving individual through an explicit declaration via public deed, or in the will itself. The forgiveness is considered legally binding also whenever the deceased indicated the undeserving individual as an heir in the will, despite the knowledge that they are deemed undeserving by law.
Wills
Do not mistakenly believe that only the rich or elderly must draft a will. In fact, every adult benefits from creating a will, as it sets up a distribution plan of assets.
We do understand that dealing with the loss of a loved one is very painful. We strive to provide our clients with the best legal assistance in order for succession procedures to move forward with no obstacles.
Issues related to the probate and succession in Italy may be deeply complex, even for smaller estates. However, we regularly assist clients from all over the world that must deal with the legacy and properties of relatives in Italy.
Originally Published by Boccadutri, December 2020
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
