DISPOSING BY WILL / INHERITING AN ITALIAN PROPERTY
- Italian Wills
- Italian Probate
- Italian Inheritance Tax
Under Italian Law of succession a person may dispose of his / her property / Estate for the time after his / her death by Will (Testamento) or alternatively, let the law to deal with this matter.
Where a person dies without a valid Will, (Intestata) Italian law states who is going to inherit and how much (Successione legittima). Where a person dies leaving a valid Will the law will first ascertain the validity of such Will, secondly provide a set of formalities to be complied with and, in some case taxes to be paid, thirdly will ensure that the Will is implemented and the relevant assets are legally transferred to the persons / beneficiaries entitled (Eredi / legatari).
In implementing the Will of a person habitually resident in Italy, Italian law will also ensure that the immediate members of the Deceased family are not deprived of their minimum statutory share of the Estate (Quota di legittima), which is due to them under the general law. Where the Will infringes such minimum statutory shares, the Will may not implemented / the heirs who have been deprived or are affected will have redress under the law and may apply to the Italian Courts.
Italian succession law and Italian probate procedure are complex and in this document I can only provide general indications. You should always seek the advice of a specialised Italian law firms where seeking to make an Italian Will, trying to dispose of property located in Italy or should you inherit / be entitled to any property in Italy.
1) ITALIAN WILLS
Under Italian law there are three different ways of making a valid Will:
a) Handwritten Will (Testamento Olografo) – This is a document personally handwritten by the person making the Will (Testator), dated and signed. There is no need of witnesses, there is no attestation clause. It can be a very simple letter or document.
This document can be in any language, written on any paper / other medium. Although it is a simple document, it is advisable that it should be checked by a lawyer to ensure that all the formal and substantive legal requirements are satisfied.
b) Formal Will (Testamento Pubblico) – This is a document drafted by an Italian notary upon the instructions of the Testator, read out by the Notary to ensure that it complies with the wishes of the Testator and signed by the Testator in the presence of witnesses. The Will is then lodged with the Italian notary.
This is a fairly formal document. While it provides reassurance that the Will will not be lost / disregarded, it involves a cost (notarial fees), and its contents are immediately disclosed to third parties (witnesses), who may not keep it confidential.
c) Secret Will (Testamento Segreto) – This is a Will drafted / written by the Testator and placed in a sealed envelope which is then delivered to an Italian Notary. The notarial fees are reduced, the contents of the Will shall remain secret until after the death of the Testator when, the sealed envelope will be open.
You should not assume that if you make an Italian Will it will always be accepted and implemented, as there are detailed rules under Italian law, which provide which legal format is acceptable to the Italian authorities. If you have any property in Italy and you wish to make a valid Will, you should always consult a qualified lawyer.
In some cases, foreign Wills will be recognised and enforced under Italian law. However this is a complex matter. Where a person owning property in Italy wishes to make a foreign Will (say, wishes to make a Will in accordance with English law), it is recommended that the matter be considered both by an Italian lawyer and a lawyer practising in the relevant foreign jurisdiction, as the different rules of two different legal systems will be applicable and operative.
One of the problems of Wills under Italian law is that the law provides that the members of the immediate family of the Testator are entitled to minimum statutory shares (Successione necessaria – also known as “Forced heirhsip”) in his / her Estate. So, it is not simply a question of the form / formalities of making the Will but is also a question of ensuring that the minimum shares granted by law to the various beneficiaries are complied with. This is a substantive Italian legal matter.
The rules relating to minimum statutory shares of the Estate, may not, in some cases apply. Generally the following relatives will be entitled to the following minimum statutory shares:
|IF A PERSON DIES LEAVING A WILL||Minimum Statutory Share|
|Only one child and no spouse:||to the child 1 / 2 of the Estate|
|Two or more children but no spouse:||To the children in equal shares a total of 2 / 3 of the Estate|
|One or more “Ascendenti“||(generally parents) but no spouse and no children 1 / 3 of the Estate|
|Only a surviving spouse||To the surviving spouse 1 / 2 of the Estate|
|A surviving spouse and a child:||to the surviving spouse 1 / 3 of the Estate
to the child 1 / 3 of the Estate
|A surviving spouse and children:||to the spouse 1 / 4 of the Estate
to the children in equal shares a total of 1 / 2 of the Estate
|A surviving spouse and “Ascendenti” but no children:||to the spouse 1 / 2 of the Estate to the “Ascendenti” 1 / 4 of the Estate|
If there is a breach of these rules, the beneficiary affected, who has been excluded or receives by Will less than his minimum statutory share of the Estate, can impugn the Will and apply to the Italian courts for his / her statutory share of the Estate. Whatever the provisions in the Will, the Italian courts will then re-distribute the assets of the Estate in accordance with the above rules.
It will be apparent from the above that these rules are very complex, and this is why the assistance of a qualified Italian lawyer is advisable.
2) ITALIAN PROBATE
Under Italian law the beneficiaries step directly and immediately into the Estate of the Deceased. Executors are almost unknown in Italy as the succession procedure is very different from the
equivalent under English Law.
The first point to consider is that under Italian Law the beneficiaries, by stepping into the place of the Deceased will become entitled to his Estate (assets), but will also become subject to the Deceased`s debts and liabilities. If the debts and liabilities of a Deceased exceed his assets, there is no reason why the beneficiaries should accept this financial burden. A special procedure applies where the situation is uncertain.
Where a person dies owning property (land or buildings) it may be necessary to collect documentation, organise certified translations of documents, appoint a local notary and to follow special procedures to ensure that the property is transferred at the Land Registry in the name of the beneficiaries entitled.
Italian Inheritance Tax (Imposta sulle Successioni e Donazioni) may not always be due in Italy, so that only minor taxes (Imposta ipotecaria and Imposta catastale) at a rate of 3% of the value of the property will usually be payable in Italy. In all cases it is advisable to consult Italian law firms specialised in Italian succession and probate matters. Where particular conditions apply, these taxes are further reduced to Euro 168 each (Prima
casa), for a total tax of Euro 336 whatever the value of the property !!!
This, however will not prevent foreign taxes being payable. Where the Deceased was born / domiciled in the United Kingdom the position should be considered with the assistance of specialised UK accountants, as UK Inheritance Tax may be payable.
The second point to note is that, although Italian Inheritance Tax may not always be payable, there is still a requirement to lodge an Italian Inheritance tax Return (Dichiarazione di Successione) in any event, within one year from the death of the Deceased. This will, eventually ensure that any Italian property / real estate is correctly re-registered at the Land Registry in the name of the beneficiaries entitled.
The third point is that where the Estate includes a bank account, special formalities will continue to apply, depending on the particular Italian bank involved. Unfortunately in most cases the procedure to obtain the release of funds held at the time of death by the Deceased with a bank is frequently time consuming and expensive, as to avoid fraud, Italian banks will have to ensure that the funds are released to the correct beneficiaries.
Generally where the Deceased did not own land or property, nor a bank account in Italy, the probate procedure can be extremely simple. Italian law does not require executors to be appointed.
3) ITALIAN INHERITANCE TAX
Italian Inheritance and Gift Tax (IIGT), called “Imposta sulle Successioni e Donazioni”, has had a chequered life in Italy. It was abolished on 25.10.2001, replaced by other taxes and then
resurrected on 29.11.2006 and later amended. In its current form is applicable to all successions / deaths occurring after the 3rd October 2006.
IIGT is applied to the whole, world-wide Estate where the Deceased was resident in Italy at the time of death. It will only apply to the Italian assets if the Deceased was not resident in Italy. Italian real estate, bank accounts, shares and securities issued by Italian companies are always deemed to be Italian assets.
Any gift or donation made by the Deceased in his lifetime to his heirs / beneficiaries entitled to his Estate are added to the actual value of the Estate, for the purpose of calculating the tax payable. Under current legislation, there is a presumption that the Estate also includes 10% of jewellery, money and furniture chattels, even if they are not expressly declared. Also included in the taxable Estate are all the property, goods and chattels sold by the Deceased in the last 6 months of his life, net of the proceeds of any sale, medical, maintenance and funeral expenses.
Debts are allowed as a deduction only if documented in writing, with the required formalities.
Care should be taken to consult professionals specialising in cross-border Estates.
Between Italy and the United Kingdom there is a rather old (1966) Treaty for the avoidance of Double Taxation of Estates / Estate Duty still in force, which should always be considered where the Deceased was domiciled in either country and owned assets in the other.
IIGT is due and payable by the beneficiaries entitled to the Italian Estate. The rate of tax depends on the personal relationship between the Deceased and his / her beneficiary / beneficiaries.
Basically there are three rates of IIGT. These rates are applicable to the value of the assets transferred to each individual beneficiary, depending on the degree of relationship to the Deceased:
4% for all transfers on death to the surviving spouse and children, subject to a “nil rate band” / zero tax band (Franchigia) of Euro 1,000,000 for each beneficiary
6% for all transfers to relatives within the fourth degree of relationship (brothers, sisters, uncles, aunts etc.) to the Deceased, and other relatives on the spouse side up to the third degree (no exempt amount is available). There is a special zero tax band (Franchigia) for brothers and sisters of the Deceased,
8% for all transfers on death to any other (unrelated) parties.
Where the Estate includes immovable property, that is, Italian land or buildings, additional taxes (Imposte Ipotecarie e Catastali) are also payable, normally at the rate of 3%. These taxes are normally paid at the time the Italian Inheritance Tax Return is lodged with the Italian authorities.
A provision of Italian Inheritance and Gift Tax prevents any legal transfer / disposal of assets included in the Estate of a Deceased until an Italian Inheritance Tax Return (Dichiarazione di Successione) has been lodged with the Authorities. This will usually mean, for instance, that in the case of Italian bank accounts, the banks will “freeze” the Italian account until an Inheritance Tax Return has been duly lodged, and documentary evidence of that has been produced to the bank.
It is very important to note that an Italian Inheritance Tax Return should always be lodged with the Italian tax Authorities within one year from the date of death of the Deceased. In default, interest and penalties are normally, applicable. Since the 1st January 2019 Italian Inheritance Tax Returns can only be lodged electronically.
Because of the “nil rate band” / zero rate band applicable to most successions where the Estate is transferred to the immediate family of the Deceased, no IIGT will actually be payable in Italy, in most cases. No Italian Inheritance Tax Return is required to be lodged where the whole Estate devolves to the surviving spouse and children of the Deceased, it does not include any real estate and is valued at less than Euro 100,000.
However, an Italian Inheritance Tax Return should always be lodged with the Italian Authorities and small amounts of other taxes will be payable, where an Italian property is included in the Estate. Lodging an Italian Inheritance Tax Return and paying any Italian taxes due, are an essential part of the procedure to get the legal title to any Italian property re-registered in the names of the beneficiaries of the Estate of any Deceased.
IIGT is paid upon assessment, which must be served on taxpayers within 3 years of the Italian Return being lodged.
Because of the detail of information and of copious documentation required to be filed with the Italian Inheritance Tax Returns, it may take quite some time to organize this formality. The procedure is more complex where the Deceased was a foreign national / non-resident.
It is advisable to start collating all the required information and documentation as soon as possible, to avoid last minute panic !
Dr Claudio Del Giudice, 08.10.2019, Copyrights reserved