21 Dec 2016

How to Make A Will in Italy

Italian Estate Law generally provides two different kinds of succession:

A. Statutory intestate succession (or succession ‘ab intestato’), if there is no will; or

B. Testamentary succession, if a will exists.

Italian Law regards the will or the testament as a unilateral revocable act by which a person disposes of all or part of his or her patrimony. Through this article we will analyse and understand the various types of will available in Italy, how to go about making a will and what happens after death.

The last will and testament is the instrument ultimately fixing the disposition of real and personal property at the testator’s death. The main purpose for making an Italian Will is to simplify matters at the time of death.

In Italy a will is a strictly personal act, which must be the direct and exclusive manifestation of the testator’s will. In order for a person to be eligible to make a will in Italy, he must be:

  1. At least 18 years old
  2. The legal owner of the assets
  3. Of sound mind (capace di intendere e di volere); in other words, the will-makers shall have mental capacity at the time of drafting the will.

Types of Wills

  • There are three recognised types of valid will:
  • Handwritten Will (Holographic Will - Testamento Olografo)
  • This document is:
  • Personally handwritten by the person making the will (testator)
  • Dated (determining the most recent will in the event of there being several)
  • Signed

Written on any paper or another medium, in any language

This type of will can consist of a very simple letter or a document drafted by the testator himself, however it is recommendable to let a lawyer check the existence of all formal and substantive legal requirements. No witness or attestation clause are needed.

Formal Will (Testamento Pubblico)

The public notarial testament is received by the notary in the presence of two witnesses. The testator declares to the notary his will and the notary writes the testament and reads it in the presence of the witnesses. This document is a fairly formal document that is created only with the assistance of a notary. It is:

  • Drafted by an Italian notary on testator’s instructions
  • Read out loud by the notary to ensure compliance with testator’s wishes
  • Signed by the testator in the presence of witnesses
  • Recorded and stored with an Italian notary
  • Disclosed to a third party – it is a public will.

Secret Will (Testamento Segreto)

The secret notarial testament can be written by the testator or by a third party. This type of will consists of a document, which is drafted or written by the testator and placed in a sealed envelope, then delivered to an Italian notary. The main character is of course the secrecy, indeed its contents must remain secret until after the death of the testator when the sealed envelope is opened. Notarial fees are less than those occurring for a formal will.

Preparation of the Italian Will

When preparing a will in Italy it is recommended to get advice from a lawyer, ideally one familiar with both Italian and the will maker’s national jurisdictions. Wills and probate matters involve taxation issues; an Italian accountant should be consulted for the preparation of the will.

Even with the existence of a valid last will and testament, the Italian estate law guarantees to some relatives the right to take over from the decedent in a part of his estate, even against his will so that he cannot dispose of all his goods. Italian law dictates that a minimum statutory share (Successione Necessaria) of the estate be bequeathed to immediate family members before the rest of the assets may be freely disposed of. It is therefore crucial for the will-maker to understands to which extent he may determine freely his degree of freedom of choice to affect the assets, according to Italian law.

Will making is not a time-consuming procedure, but it is important to complete all documents accurately. It is suggested to contact an Italian professional for guidance. While it’s recommended to avoid frequent changes to the terms and beneficiaries, a will can be changed to accommodate a change of circumstance at any point until the time of death. The most recently made will is considered valid.

Foreigners and wills in Italy

Italy recognises an international will as valid, but it is recommended that a foreigner make a will in Italy if they:

  • Live permanently in Italy
  • Own immovable property in Italy

It is advisable for foreigners residing in Italy to prefer to create an Italian will. Heirs of a will that is not Italian may encounter significant difficulty with the transfer of any Italian assets. This is due to the fact that the will must be authenticated by an Italian Notary Public before any assets can be distributed. The notary may have substantial problems in resolving conflicts between foreign and Italian law as well as advising heirs and/or preparing suitable documentation to transfer the assets. Besides, the costs related to the translation of the documents could be greater than the cost of making an Italian will.

English nationals should note: Italian legislation is more generous than English legislation with regard to inheritance tax. This in practice means that small to medium estates are not subject to inheritance tax in Italy.

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