Inheritance Law in Italy
Information on inheritance law for resident foreigners and their families with assets in and outside of Italy...
Under Italian succession law certain members of the family - "forced heirs" - are automatically entitled to a share of the deceased's assets at the time of death. This compulsory share or forced heirship is called legittima.
The following are entitled to the statutory fixed share (Successione Necessaria) of the deceased's estate:
- The spouse (husband or wife): A separated partner has the same right to the share of legittima as a non-separated partner, provided that the judge has not declared them responsible for the separation. A divorced partner does not have any right to the legittima
- The children: (legitimate, legitimated, illegitimate or adopted)
- The ascendants: when no children (or their ascendants) are alive at the time of the deceased's death
These particular rules on forced heirship apply when the deceased is an Italian national.
A foreigner may follow the same rules as an Italian national providing their own national law allows it.
Benefits of an Italian will
There are benefits to creating an Italian will and following Italian law:
- It minimises the risk of confusion or conflicts among the heirs at death (if the legittima has not been adhered to, a family member who believes they are entitled to part or all of the estate may challenge the inheritance)
- The survivors may pay less in taxes if the assets are left in accordance with the legittima
- It ensures that the Italian authorities understand the situation; therefore the costs of executing the will are likely to be lower
Italian Inheritance and Foreign Wills in Italy
The Italian legal system has adopted the principle of unity of succession; as a consequence, the legislation of the deceased's country of nationality applies.
For example, if an English national buys a property in Italy, it is registered in their name and they still own it at the time of their death, under the English rules its succession should be regulated by the Italian law of succession. The Italian legal system accepts this "referral" by the English law and therefore the succession of this asset will be regulated by Italian law.
The rules of forced heirship can apply to a foreigner with an Italian will. In the will it is possible to choose the Italian or the foreign Law with the electio legis which is a codicil through which a person can decide to which legislation their estate is to be referred after death.
By the Italian rules of forced heirship, even if the deceased has left all their assets to a person who is not a compulsory heirs, the compulsory heirs will still receive their share.
General guidelines suggest that a foreigner with a Italian assets with a value of more than €350,000 and a simple family structure should choose to make a will under Italian Law to save on tax charges. However, if a foreigner with Italian assets wants to be free to choose their heirs they should insert the electio legis in the will providing this complies with their country's law.
Invalid Wills or Intestacy (Successione Necessaria)
If a will does not exist for the deceased, or if an existing will has been declared invalid, the Italian general rules on intestate succession apply. Therefore the closest relatives of the deceased are entitled to a share of the assets in accordance with the provision of Italian law.
British citizens: English law has adopted the principle of scission, which means that the succession of movable assets is governed by the law of the deceased's domicile (the country where the deceased lived), while the succession of immovable assets is governed by the law of the situs (where the property is located). For example, if a British citizen without a will has a property in their name in Italy at their time of death, under English law the inheritance should be regulated by the Italian law of succession. The Italian legal system accepts this "referral" by the English law and therefore this asset is regulated by the Italian law of succession.
Italian lines of intestate succession
- Surviving spouse: A surviving spouse is entitled to inheritance if they are still married or legally separated at the time of death. A divorced spouse is not recognised
- Spouse and one surviving child: one half goes to the wife; one half to the child
- Spouse and two surviving children: one third to the spouse; two thirds to the children
If there is no surviving spouse, the following are entitled to inheritance:
- Parents, siblings (brothers and sisters) and their descendants
- Uncles, aunts and other collateral (nieces, nephews and so on)
- The Italian State (Stato Italiano)
Italian Inheritance Tax
Italian inheritance tax was abolished in 2001 then consequently re-introduced by the government. Heirs are required to pay Inheritance Tax when they present the declaration to the competent office.
Italian Inheritance Tax is levied at three different flat rates, on the whole or part of the Estate of the deceased with reference to the entitled beneficiaries, as follows:
- 4% where the Estate or part of the Estate devolves to the deceased's spouse or children, with a nil rate band up to €1,000,000 each (the so called "Franchigia")
- 6% where the Estate or part of the Estate devolves to brothers or sisters (subject to an exempt amount of €100,000 each) and to other relatives of the deceased up to the fourth degree (without any "exempt amount")
- 8% where the Estate or part of the Estate devolves to unrelated parties. Where the Estate or part of the Estate devolves to one or more disabled children, the exempt amount is increased to €1,500,000
- Where the Estate includes a business or a substantial shareholding in a company, whatever the amount, these are not taxed if they pass to the children of the deceased and if the children undertake to continue the business or control the company for at least five years
- Wills and inheritance (specifically for UK citizens) from website ItalyUKLaw
- A list of English-speaking Italian lawyers and notaries from the US Consulate in Rome
- Information (specifically for Americans) from Italian Legal Language Services