FREQUENTLY ASKED QUESTIONS ON ITALIAN INHERITANCE LAW

Jun 29, 2020

A practical Q&A for Inheritance Procedure in Italy

1. What is Inheritance and Succession under Italian Law?
   After a person deceases in Italy, his inheritance procedure will be opened. Essentially, this procedure is important to identify the individuals who will receive the assets of the deceased and to determine the share of inheritance that applies to each party.
   
   
2. Who can claim for inheritance in Italy?
   Anyone indicated in the will and those who are considered/recognized as legitimate heirs according to the Italian Inheritance Law. Also, in case of an absence of a will and identified heirs, family members up to the sixth degree of kinship are allowed to claim for inheritance. If there are no heirs, relatives nor testamentary dispositions, the Italian State can claim for inheritance.
   
   
3. What happens if the deceased is a foreigner? Which law shall apply to determine who the heirs are?
   The general rule is that the law of the country of habitual residence of the deceased at the time of his/her death will be applied. However, there is also the possibility to choose for the law of the deceased nationality, only if established in the will.
   
   
4. Who are the legitimate heirs?
   Under Italian law, the legitimate heirs are: a) the spouse, b) the children (or their heirs) and c) the ascendants.
   It is important to keep in mind that Italian Law, even though the existence of a will, guarantees the share of inheritance to the legitimate heirs.
   
   
5. Can I leave my possessions and assets to any other person who is not a member of my family?
   As explained above, Italian Inheritance Law recognizes the status of legitimate heirs and guarantees them a specific shared percentage (known as “reserved share”). Therefore, the testator can leave to anyone his/her possessions and assets but only the proportion permited by law.
   In the case the share percentages pertaining to the legitimate heirs are not respected in the will, the interested party (parties) can challenge the will by asking the reduction of the testamentary disposition as it breaches their rights as legitimate heirs.
   
   
6. How to accept inheritance in Italy?
   It is very important to accept the inheritance according to the formalities established by law. There are basically three ways to accept an inheritance:
   a) Express acceptance, which will be done through a public deed or a private document, where it will be written that the person is declaring expressly to accept the inheritance and therefore assumes his/her role as an heir;
   b) Tacit acceptance, in this case, the acceptance takes place when the person called to inherit performs an act which will not be possible to do unless he/she has the right to proceed as a heir;
   c) Acceptance with the benefit of inventory, in this case the acceptance takes place with a declaration at the notary or a Court/Judicial clerk in which the heir prevents the confusion between his assets and that of the deceased. In this way, the inherited assets and the heir’s own assets will remain separate and therefore, the liabilities inherited will be paid only within the limit of the value of the inherited assets.
   
   
7. Do I have to go to Italy to claim my inheritance rights?
   No, your physical presence is not required for claiming your inheritance rights in Italy. We can appoint a counsel to follow your case. If you need support for claiming your rights, please contact us.
   
   

8. Is there any deadline to claim the inheritance rights?
   Yes, there is. Basically, there are two important deadlines. The first one is the declaration of succession, which must be done within 12 months from the date of the opening of the inheritance procedure. The second important deadline is for the acceptance of the inheritance. In this case, the deadline is 10 years from the death of the property owner. However, this deadline may vary upon request before the Court from other interested parties.
   
   

9. The will is not written in Italian, is it valid? Does Italian Inheritance Law (Succession Law) accepts foreign wills?
   Generally speaking, Italian Inheritance Law / Italian Succession Law accepts foreign wills, however, it must be authenticated by an Italian Notary. Furthermore, even though it is legally possible to use a foreign will in Italy, it is highly advisable for a non-Italian citizen that owns properties in Italy to prepare an Italian will written in Italian as submitting documents written in foreign languages or foreign documents means that it will be required to be translated and legalized, which may cause delays in the procedure and may also cause additional costs.
   
   
10. Is there any specific format for the will?
    Italian law has mainly 3 types of wills:
    a) Public will (article 603 of Italian Civil Code), which must be done and signed in front of a Public Notary and two witnesses. Even though this type of will is called “Public”, the content of the will is going to remain private until the death of the testator.
    b) Holographic will (also known as private will)(article 609 of Italian Civil Code), which must be handwritten, dated, signed by the testator (the deceased) and duly sealed. Legally speaking, the testator is not obliged to inform others that he/she has written the holographic will. So, this type of will can be kept by the tastator himself, it can be handed to another person to keep it in a fiduciary deposit or to a Notary.
    c) Secret will (article 604 of Italian Civil Code), it is similar to public wills, as it will be done in front of the notary and two witnesses, and the notary will keep it as a public will. The main difference with the public will is that the content of the secret will remains “secret” even to the notary since he will simply attest that it has been duly signed in front of him and the two witnesses and will keep it in his archives until the testator’s death.
    
    
11. Can I renounce the inheritance?
    Yes, you can. However, in case you would prefer to give up the inheritance (for example in the event that the inheritance includes debts), it is important to respect the formalities and deadlines established by law.
    
    
12. Who is the executor of the will? What does he do?
    The executor is an individual that had been identified and appointed in the will by the testator/deceased. The executor is entrusted with the task of effective execution of the deceased’s will. Furthermore, he manages the hereditary assets and, under certain conditions, he can also take legal action to protect such assets.
    
    
13. Who can be nominated as the executor of a will?
    The testor can basicaly choose anyone who trusts (also a heir), and nominate him as the executor of his will. Besides, the testator can even nominate more than one executor (in such case, the tasks must be divided among them).

Yuu Shibata

She is a Legal Counsel and she holds a Ph.D in Law (University of Bologna). She is specialized in European Union Law and she is the Head of the Japanese Desk and Spanish Desk. She is mother tongue Japanese and Spanish and speaks fluently Italian and English.

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