Making a Will in Italy
Understand the various types of will available in Italy, how to go about making a will and what happens after death...
To be legally eligible to make an Italian will, a person must be:
- At least 18 years old
- The legal owner of the remaining assets
- Of sound mind (capace di intendere e di volere); in the event of a dispute over the will-maker's mental capacity at the time of drafting the will, a court will rule on the case
Who Should Make an Italian Will
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 (a house, flat or land) in Italy
The main purpose for making an Italian will is to simplify matters at the time of death.
Foreigners and wills in Italy
It is recommended that foreigners who are resident in Italy create an Italian will. Heirs of a will that is not Italian (such as an English or American will) may have 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 (or other Italian legal professional) may have substantial difficulty, with regard to Italian assets, in resolving conflicts between foreign and Italian law as well as advising heirs and/or preparing suitable documentation to transfer the assets.
The cost of translating all pertinent foreign or English-language documents into Italian after the death of the foreign will-holder is likely to 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.
Types of Wills
Under Italian law 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)
- Written on any paper or another medium, in any language
Although it is a simple document, it is advisable that it be checked by a lawyer to ensure that all the formal and substantive legal requirements have been satisfied.
It can be a very simple letter or document drafted directly by the testator. There is no need for witnesses and no attestation clause.
Formal Will (Testamento Pubblico)
This document is:
- Drafted by an Italian notary on the instructions of the testator
- Read out loud by the notary to ensure that it complies with the wishes of the testator
- Signed by the testator in the presence of witnesses
- Recorded and stored with an Italian notary and therefore will not be lost or disregarded
- A fairly formal document
- Created only with the assistance of a notary, with fees payable (notarial fees)
- Disclosed to a third party (because it is a public will) and is not secret
The process: An appointment with a notary is made to explain the requirements and give instructions (not all Italian notaries speak English). The witnesses are typically clerks selected by the notary.
Secret Will (Testamento Segreto)
This is a will drafted or written by the testator and placed in a sealed envelope which is then delivered to an Italian notary. The contents of the remain secret until after the death of the testator when the sealed envelope is opened. Notarial fees for a Secret Will are less than those for a Formal Will.
The process: As with a Testamento Pubblico, an appointment must be made with a notary to deposit the sealed will.
Preparation of the Italian Will
When it comes to making 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 (generally an Italian lawyer can direct a testator to an accountant - they may work closely together).
Italian law dictates that a minimum statutory share (Successione Necessaria) of the estate be bequeathed to immediate family members before the balance may be freely disposed of (see Inheritance in Italy, below). It is therefore important the will-maker understands the law and how it affects their assets.
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 (lawyer or Notaio) 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.
In case of emergency, a testator may write their will directly or contact a notary who can receive the last will.
After the Death of the Will-Maker
In order to settle the deceased's estate, it must first be ascertained what kind of will the testator made.
Collect all the documents affecting the testator's properties and contact an Italian legal professional (lawyer, notario, accountant or geometra) to make the Declaration of Succession (Dichiarazione di Successione).
The Dichiarazione di Successione must be made by the deceased's heirs within six months of the date of death.
In order to make a Declaration of Succession:
- Complete the Ministry of Finance (Ministero delle Finanze) form Modello 4, on which all the assets should be noted
- Apply to the Tax Office (Ufficio delle Entrate) of the town where the deceased was resident
- If the deceased was not resident in Italy, the declaration of succession must be presented to the relevant Tax Office in Rome
The legal professional will be able to complete the procedure by registering the new owners at the Land Registry (Ufficio del Catasto). A registration tax must be paid, which is calculated based on the value of the assets.