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 Post subject: Property Inheritance
PostPosted: April 12th, 2016, 2:37 pm 
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Location: Carmarthen, south west Wales / Santa Maria di Ricadi, Capo Vaticano
I require advice with regards to the inheritance of property in Italy.
With regards to Italian law, am I correct that if a property is equally owned by a husband and wife and one of them dies intestate the property is inherited by the spouse and all children of that marriage in equal shares?
If a Will is made and declares that the property is to be inherited by the remaining spouse only, that this is legally binding?
Does the Will have to be made in Italy or is it possible that a UK Will stating this declaration have legal standing in Italy?


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 Post subject: Re: Property Inheritance
PostPosted: April 14th, 2016, 11:30 am 
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Location: Carmarthen, south west Wales / Santa Maria di Ricadi, Capo Vaticano
I thought that there had been advice on the Forum re Wills and I have found it dating back to 2011. I should have searched more thoroughly.
I also checked the website http://www.studiolegalemetta.com/en/do- ... ll-or-not/
dated 2014 on this matter.
It answers my query and tne aspect of someone dying intestate although it doesn't specify in what manner the assets are shared amongst the surviving family.
I paste the article below :-

DO I NEED AN ITALIAN WILL OR NOT?

03/02/2014
Q QUESTION: Do I need an Italian will or not to handle the Italian portion of my estate? I live in the UK, I am a British citizen and I own an Italian property.
A ANSWER: Whether you need an Italian will or not depends on your (1) personal circumstances, (2) nature and (3) entity of your estate, your (4) family situation and (5) your wishes. It is not required to have an Italian will. In some cases it is not even advisable. Of course you can have an Italian will though.

In a British-Italian succession the following rules apply:
a) Italy accepts that foreign wills (e.g., in a foreign form, in a foreign language) are used to govern the succession of Italian assets;
b) Italy accepts that a testator elects a foreign law to govern the succession with reference to Italian assets, under the condition that the chosen law is the national law of the testator at time of testator’s death;
c) When making a British will to be used in Italy, if you wish the British law to apply to the Italian estate too, mention in the will that you live in the UK and are a British citizen; also mention your home address;
d) Add within the will a Governing Law clause similar to the following one: “This will shall be construed in conformity with the law of [England and Wales], regardless of where the properties subject to it are situated. I elect the domestic law of [Engalnd and Wales] to apply to my entire succession, because of my UK habitual residence and UK nationality, even in the event that at the time of my death I will no longer be a UK resident and even if I will be a resident of Italy, or if I will have the Italian nationality or any other nationality in addition to the UK nationality”. This is just a general wording and shall not be adopted without proper legal review of all applicable case circumstances;
e) A foreign will shall not conflict with Italian public policy, i.e., Italian law founding principles. Forced heirship rules are not protected by public policy.

If there is no will, the succession of Italian assets is regulated by the laws of the country of habitual residence of the deceased. However, common law countries such as the UK, the U.S. and Australia, say that the law applicable to real etsate rights is the one where the real estate is geografically located. As a result, the domestic Italian inheritance law would in your case be the one regulating the succession and the distribution of the Italian property.

In conclusion, it is sufficient to to state in a will that the testator would like the home country inheritance legislation to govern the inheritance. The inheritance of an Italian property owned by a UK resident would be regulated by the applicable UK law. Italian authorities shall then execute the non Italian will. Consequently, you are not required to have an Italian will for your Italian property as its transition during an Italian inheritance proceeding can be regulated by a foreign will.

An Italian will, as opposed to a UK will, would typically imply higher costs to be preparedand and higher cost for the Italian inheritance claim process, due to the formalities required in relation to the autentication, publication and registration of Italian wills.

Italian lawyers of Studio Legale Metta have succesfully worked on hundreds of inheritance matters regarding non Italian testators, involving properties located throughout Italy. Some inheritance procedures were regulated by foreign Wills, some of them by Italian Wills and some according to the intestate applicable rules (in Italian “successione legittima“), which apply when the deceased did not leave any will. The successions regulated by non Italian Wills have typically been substantially cheaper than the ones regulated by Italian Wills.


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 Post subject: Re: Property Inheritance
PostPosted: April 15th, 2016, 3:51 pm 
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Joined: January 25th, 2008, 8:35 pm
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Location: Herefordshire/Badolato
We are going to transfer our property to our son when he is a bit older.


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 Post subject: Re: Property Inheritance
PostPosted: April 16th, 2016, 11:10 am 
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Location: Carmarthen, south west Wales / Santa Maria di Ricadi, Capo Vaticano
The reason that I questioned this in the first place was to clarify whether our property owned jointly by wife and myself would be inherited soley by the surviving spouse or would my two daughters also automatically inherit a third share each under Italian Law for those without an Italian Will.
The article I posted makes it clear that my UK Will can take care of this so that the surviving spouse can inherit and own it outright after the demise of the spouse.
The situation I was trying to avoid was with regards to my annual Tax return.
We rent the property out during the peak season and because it is jointly owned we have to pay the Italian accountant two fees as a Tax return for each of us has to be submitted.
I was wanting to avoid three accountant fees being paid in the future.
I don't think that there are implications regarding the Property Taxes are affected by whatever number of persons own a property as far as a non-resident is concerned. These taxes I believe are based on the property.


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 Post subject: Re: Property Inheritance
PostPosted: April 16th, 2016, 1:20 pm 
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Joined: January 20th, 2012, 4:24 pm
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Location: Italy
davidnam wrote:
The reason that I questioned this in the first place was to clarify whether our property owned jointly by wife and myself would be inherited soley by the surviving spouse or would my two daughters also automatically inherit a third share each under Italian Law for those without an Italian Will..


According italian Inheritance laws , in case of death of one of the spouses with children, the goods that are the property of one spouse, are inherited by the children - while the surviving spouse inherits only the usufruct (ie it can use the asset or receive the fruits it produces - for example a line rental), but does not have the ownership of the property - that is, can not sell the asset - If the property is split 50% between the two spouses - the survivor maintains its 50% and the remaining 50 % will be inherited by their children - while the surviving spouse inherits only the usufruct (as above)

For more , see at > http://www.notariato.it/en/famiglia/succession


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 Post subject: Re: Property Inheritance
PostPosted: April 17th, 2016, 11:05 am 
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Location: Carmarthen, south west Wales / Santa Maria di Ricadi, Capo Vaticano
Hi Lifeinitaly,
Thank you for the link which in short (as I understand it) means that in any event the surviving spouse will have to go through a Notary for the ownership of the property to be transferred legally after having "Acceptance of the Inheritance" and "Declaration of Succession" completed. One also has to ensure that there may not be any "Inheritance Tax" implications. Tax is exempt if the assets are less than €1 million, so no problems there!
My calculation was incorrect in my last post if two children inherited the share of the deceased, they would get 25% each of the property, the surviving spouse would still own teh 50% share.
It would appear in my case that I shall specify the Italian property in the will as described previously and a Notary will have to be involved.

Just a note to explain why I am checking inheritance, and the paying of all taxes (property, income etc.) that are due is to avoid complications if one wants to sell sell the property in the future.
There are quite a number of expats who own property in Italy, rent them out but do not declare this to the Agenzia (Italian Tax Office) which they are obliged to do.


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 Post subject: Re: Property Inheritance
PostPosted: April 17th, 2016, 6:52 pm 
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Location: Italy
Hi Davidnam,
it is not mandatory to use a notary to a complaint of succession, but at least one expert accountant, and above all, be able to speak the English language, in order to explain the law and what is signed, it would be recommendable.

certainly if the goods are the property of the two spouses in equal parts and not divided (the exact term is <pro-rata undivided>) should be clearly identified as the goods or the value of goods that falls to each of the spouses, so that the spouse stayed alive remains exactly half - and then pass on to two children, or pro-rata undivided, or new shares in clearly identified (both in goods and in value), the part of the goods or the value thereof, that They have been identified as the property of the deceased spouse -

If the goods are clearly divided - for example bank deposits - just a mathematical division that anyone can do

If the goods are represented by a house - will also need the intervention of a surveyor, who makes an expert opinion, in order to identify the value and divide it evenly into two parts first. Then the half of the deceased spouse , in two equal parts, to be allocated to the two children.

If then the house can be divided, keeping its use, for example in 2 or 3 apartments, the surveyor will also attend to her work at the offices of the municipality, and work with a construction company - If the house can not be divided, it will be necessary to find a common usage agreement between the parties, or organizing the sale and then split the proceeds.

Only after you have identified exactly the values of the parties, any taxes will be calculated to pay.

Now I want to clarify that I am neither a notary nor a surveyor, nor an accountant, are operating as a mortgage broker for over 18 years, and I have had several clients in similar situations.

always I warn my foreign customers that if the bill of a qualified professional, initially appears challenging , is because they still do not know what it will cost the work of a fool.

http://www.lifeinitaly.it/index.php


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 Post subject: Re: Property Inheritance
PostPosted: April 19th, 2016, 10:12 am 
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Hi Lifeinitaly,
Thank you for your useful information and advice.
I am pleased to know that I wouldn't necessary have to employ a Notary and that a good Accountant would suffice.
In our case my wife and I in the first instance only wish to gift our 50% share of our Italiuan assets to the survivoring spouse. The inheritance for the children would come later in a new Will that would be writen.


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 Post subject: Re: Property Inheritance
PostPosted: April 19th, 2016, 10:36 am 
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Location: Italy
Hi David,
be very careful in using the donation tool, in Italy - That's because, for the applicable law, against donation can be made opposition from any of the heirs, for a period of 10 years - a result, no bank will be willing, until 10 years have elapsed, to grant a mortgage on the property - the reason is that if the donation will be canceled, following a legal action and consequently the good returns of the donor properties (so in case of death , to all the heirs - pro-rata-undivided),, the bank would find itself without any collateral (mortgage), for the money paid as a loan.


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 Post subject: Re: Property Inheritance
PostPosted: April 20th, 2016, 10:57 am 
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Location: Carmarthen, south west Wales / Santa Maria di Ricadi, Capo Vaticano
Hi Lifeinitaly,
I think I understand what you are saying. The terminology you use is different to what we use in UK.
I believe you are mentioning the situation where gifts are made 10 years prior to death and if there are any claims against those and where a mortgage may be involved.
I will have no worries there as the property will be hopefully mortgage free by then and there will be nobody in my family to contest the wishes of the Will.
I do hope that our 'conversation' will be useful to others on the Forum.
Thank you once again.


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 Post subject: Re: Property Inheritance
PostPosted: April 20th, 2016, 12:42 pm 
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Location: Italy
Hi David ,

I will try to explain it better, perhaps with an example, and ask forgiveness in advance for my English, not perfect.

A deed of gift, in Italy, is a particular act of transfer of a property, in which the one who receives the good does not pay transfer taxes on the property .

The period in which one or more heirs of the person who donated the property, may take a legal action seeking to annul the donation, is 10 years, AFTER that the donation was made

The donation is an act that the owner does before a notary, so it must be done when the donor is ALIVE -

Ten years shall run from the date precisely of the act of donation.

Example -
1> Mario record a deed of gift for his house to his son Peter
2> two years after the donation Mario dies
3> from the date of death, Mary (Peter sister) has 8 years to demand the annulment of the donation (ie 10 years from the date of the act of donation)

Peter - five years after receiving a gift from his father Mario, decides to sell the house to John -

John going to the bank and requests a loan to buy the house from Peter

As do not yet passed 10 years from the year in which Peter received the house as deed of gift, from his father Mario , the bank will not give to John the mortgage that he requires -

This is because Mary, or even the sons of Mary (Peter sister) , still have five years to demand the annulment of the donation.

I understand that all this seems complicated, but I find no better way to explain it

And it is precisely this reason that serves an accountant or a notary public, who know the Italian laws.


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 Post subject: Re: Property Inheritance
PostPosted: April 20th, 2016, 10:40 pm 
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Location: Carmarthen, south west Wales / Santa Maria di Ricadi, Capo Vaticano
Hi Lifeinitaly,
Thank you for the clarification on the matter of deed of Gift to someone.
It was as I understood it to mean as you explained earlier.


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 Post subject: Re: Property Inheritance
PostPosted: April 21st, 2016, 5:20 pm 
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Joined: January 25th, 2008, 8:35 pm
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Location: Herefordshire/Badolato
Thank you for the information on gifts of promptly. We have only one child so no problem for us


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 Post subject: Re: Property Inheritance
PostPosted: April 21st, 2016, 5:46 pm 
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Location: Italy
MOLTO BENE ! :)


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