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 Post subject: Italian Wills
PostPosted: June 25th, 2011, 2:19 pm 
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Dear Members,

According to many requests “Zagamilaw International Law Firm” is dealing with many Italian wills performed by British owners mainly of Italian properties and Italian banking accounts. By this short topic we are pleased to point out why and how make an Italian will as well as its consequences.

REASON TO MAKE AN ITALIAN WILL: The heirs of a will that is not Italian (such as an English will) may have many difficulties with the transfer of any Italian asset. This is due to the fact that in this case the will must be authenticated by an Italian Notary Public before any asset 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. Also the cost of translating all English-language documents into Italian after the death of the foreign will-holder is likely to be greater than the cost of making a simple Italian will. For all which is above mentioned It is highly recommended that English people who own properties in Italy create an Italian will to ensure their sons inherits the property once they have passed away.

HOW TO MAKE AN ITALIAN WILL: Basically under Italian Law you have three options which reach all exactly the same legal effect:1) Formal Will. This document is drafted by an Italian notary on the instructions of the testator; 2) Secret Will. This is a will drafted or written by the testator and placed in a sealed envelope which is then delivered to an Italian notary; 3) Handwritten Will. 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); signed (written on any paper or another medium, in any language).

CONSEQUENCES TO MAKE AN ITALIAN WILL: The Law number 218/1995 on Italian International Private Law provides for the application of the national inheritance law of the deceased foreigner but at the same time is also ruled the so called "Professio Iuris”, for what the deceased may choose voluntarily the national law which make adjusting his whole succession. More exactly according to article 46 of the Italian law number 218/1995 you could choose the Italian Law only IF you are resident in Italy. In any case I definitely believe it would be much more convenient for you to elect the English law as the Italian one states many restrictions for the will makers. Indeed it has to be pointed out that Italian legislation is more generous than English one with regard to the inheritance taxation but on the other hand leaving your estate under Italian law means that you are subject to the whole Italian law of succession and about it has to be noted in Italy is not allowed to “disinherit” some heirs (instead of UK where each individual can freely dispose by his will of his properties as he wishes). Also please be aware that your Testament will rule many patrimonial effects so that you have to be fully conscious of what you are doing at the time of signing it! Furthermore it is not simply a question of the form of the will but is also a question of ensuring that the minimum shares granted by law to the various beneficiaries are complied with. Anyway it is advisable that your will be checked by an expert Italian lawyer to ensure that all the formal legal requirements provided by the Italian Civil Code have been satisfied. Finally please note in any case you can change at any time your last will which indeed is a revocable document.

For further information and/or legal assistance in this matter please feel free to contact us by email or by our UK Line.

Best Regards

Avvocato Paolo Zagami
Zagamilaw International Law Firm
http://www.zagamilaw.com


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 Post subject: Re: Italian Wills
PostPosted: June 26th, 2011, 12:13 pm 
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Dear Paolo

Thank you for the information on Italian wills. Would you be so kind as to answer a few more questions on this subject.
1. You say there are 3 types of wills in Italy all reaching the same legal affect ... so why are there 3 options?
2. Should one include an Italian bank/Post office account in a will?
3. Could you please tell me how much one would expect to have to pay for the drafting of an Italian will. Options 1) 2) 3)
4. Option 3 Hand written will: Does the Hand written will also have to be delivered to a notary.
5. Lastly, should we expect to have a copy of any will we make?

Kind regards
Lorica


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 Post subject: Re: Italian Wills
PostPosted: June 26th, 2011, 8:02 pm 
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The subject of whether or not an Italian will is necessary seems to go around in circles...

Having been informed by our Italian Lawyer that a will is absoluteley necessary, we have been subsequently advised that this is not necessarily so.

It seems there is a European Law (I'll find the article and see if I can post it) that states that inheritance law for assetts within one country can be subordinated to the laws of certain other European countries. So even where a property is owned outside the UK e.g. Italy - the UK will is more than sufficient to ensure it will be dealt with consistent with a deceased wishes. Apparently there are cases where each country defers to the other to determine a will and this can sometimes lead to delay, but one can simply overcome this possibility by adding a statement in their UK will that states their wish for their Italian assetts to be distributed according to their UK will - job done as we now understand.

Of course if you don't have a will to begin with, then there may be a good case to look into this further but even so, the writing of a UK will should do everything you would ordinarily require.

Id love someone to provide unequivocal advice on this.


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 Post subject: Re: Italian Wills
PostPosted: June 26th, 2011, 8:11 pm 
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I'm sure that this question has been asked many times before. It does seem a grey area but BergaKing wrote on a post a few months past that a UK will would suffice.
May be worth looking for his post or if he sees this he will respond.
mags


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 Post subject: Re: Italian Wills
PostPosted: June 26th, 2011, 8:36 pm 
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We have been advised by our UK solicitor that it is better to have an Italian Will as well as a UK will.

Lorica


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 Post subject: Re: Italian Wills
PostPosted: August 4th, 2011, 8:31 pm 
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lorica wrote:
We have been advised by our UK solicitor that it is better to have an Italian Will as well as a UK will.

Lorica


I don't want to appear to be dismissing the advice given by your solicitor but I suspect many professionals take the safer course of 'hedging their bets'. After all, they can't lose advising you to do both - that way your covered and more importantly, so are they.

I have found the article I was looking for that provides a different recommendation (this article was posted on the Forum in the past). More importantly, rather than a general 'to be safe, you should do' we are given the legal basis of the advice that is enshrined in a European directive. As far as I know, this covers all the major EEC countries and definitely Italy and the UK. Although you would expect any Lawyer giving advice on wills should be aware of this, the conflicting messages we continue to receive suggests not.

The key point for me is the end of para 7 below but the whole article gives a very useful perspective.

I might be building a reputation for being anti-Lawyer but I'm not - quite the reverse. What I want though is soundly based and accurate advice and, from other posts on this Forum as well as my own experience, this seems to be in short supply.

Call me easily impressed if you will, but here's a Lawyer who's giving advice that won't make him any money...

This article discusses: Italian Inheritance Law and Wills, Italian Property, Succession Law, International Probate Regulations.
Sponsored article by Italian property lawyer Nick Metta, partner at Italian law firm Studio Legale Metta.
One question I always hear from non-Italian property clients is: Do I need an Italian will?
I often surprise them with the quick and simple answer: No.
Many think that it is necessary to have an Italian will to address their Italian property inheritance, but, the truth is, an Italian will isn’t necessary. A will is recommended, but it doesn’t have to be Italian. This isn’t to say that a non-Italian can’t have an Italian will; he absolutely can. It’s just that he doesn’t need one. And here’s why:
An Italian will isn’t needed because the inheritance of Italian properties is, by default, regulated by the national inheritance law of the deceased party. This means that if, for example, an American owns property in Italy, when she dies, American inheritance law applies to the property. Therefore, an American will would cover the Italian asset thus making an Italian will unnecessary. This is under typical conditions of course.
However, an important aspect to note is that in common law countries such as the UK, the home country international law would typically defer to Italian inheritance law to regulate the inheritance and the distribution of the Italian property. What does this mean? If a UK citizen dies while owning Italian property, Italian law says that the UK inheritance law would apply. However, UK law pushes back to Italy and says that Italian inheritance law applies. This back and forth can continue and thus delay the inheritance proceedings.
At this point, one might think that a home country will can address the home country assets and an Italian will can address exclusively the Italian assets. But, this is not necessarily true. A situation such as this might be interpreted in several ways. The choice of drafting an Italian will and within it using the Italian language, the Italian legal style, and an Italian legal advisor (involvement of an Italian notary is recommended) might lead to the interpretation that it was an implicit choice by the deceased to choose Italian inheritance law over the home country inheritance law.
An Italian will means that the Italian inheritance laws of distribution apply to the Italian property. The Italian laws are not as liberal as many other countries and there are specific percentage allocations that go to specific family members. In Italy, it is not possible to leave your estate to Fluffy or the mailman, unless you no longer have a spouse, child or parent. Therefore, an Italian will could possibly end up confusing the issue and impede the deceased’s wishes from being carried out.
For a visual comparison of the Italian and UK inheritance systems, please look at our Italian intestacy chart and UK intestacy chart. The charts depict the main transitions of an estate according to each country’s laws of inheritance and distribution.
To help my clients avoid facing a legal tennis match between their home country and Italy, I typically recommend that we simply modify their home country will by adding a clause which expressly statesthat they are electing for their own country’s inheritance legislation to apply to their Italian property. In this way, they do not need an Italian will to address their Italian assets.
Now, let me clarify that adding such a statement to the home country will is not absolutely necessary. I have my clients adding it as a security element, to avoid risk of confusion, future misinterpretation, etc. That said, I have also smoothly executed non-Italian wills that did not include such a statement. These wills had general terms such as “the rest of my estate”, or “all my estate”, under which the Italian property was included. The problem is that this leaves room for interpretation. And in legal matters, it is always better to eliminate possible alternative interpretations. To help, I’ve drafted a sample of a basic non-Italian will which would be valid in Italy to address an Italian property. You can download it here.
I also tell my clients not to bother with an Italian will for two further reasons very important to all of us: time and money. An Italian will simply implies more costs and additional time. There is the drafting, the authentication, the registration, the execution; in one word, bureaucracy. And we all know what that means when we’re talking about Italian bureaucracy. In my experience of executing both foreign and Italian wills, the process for foreignwills hastypically been substantially cheaper.
Let me be clear, a non-Italian can certainly have an Italian will to address an Italian property or Italian assets. It is simply that this will not benefit the inheritors. It will however definitely accomplish two things: 1) take some money out of your pocket when you pay to establish it, and then 2) take some money out of your inheritors’ pockets when they pay to execute it.
In conclusion,there are three important points to remember about Italian wills:
1. A non-Italian can have an Italian will;
2. Foreign wills are fully applicable in Italy;
3. It costs less not to have an Italian will.
For further information regarding Italian inheritance matters, please click here.
***
Nick Metta is a partner at the Italian law firm, Studio Legale Metta. Nick is head of the firm's international department which addresses matters of Italian law involving international parties in areas such as Italian real estate, property financing and Italian inheritance law.
The Italian law firm Studio Legale Metta is a boutique firm of Italian Attorneys. Established more than 120 years ago, the firm handles domestic and international casework throughout Italy.

Thought this would be useful for those readers looking at having an Italain WIll when they may not actually need one...


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 Post subject: Re: Italian Wills
PostPosted: August 4th, 2011, 9:32 pm 
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Thanks bearandcub for posting this. It is a very clear non-jargon explanation.


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 Post subject: Re: Italian Wills
PostPosted: August 6th, 2011, 10:54 am 
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"To help, I’ve drafted a sample of a basic non-Italian will which would be valid in Italy to address an Italian property. You can download it here."

Bearandcub any chance of posting the sample of a basic non-Italian will on the forum.

Very informative indeed


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 Post subject: Re: Italian Wills
PostPosted: August 6th, 2011, 5:38 pm 
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iloveitaly wrote:
"To help, I’ve drafted a sample of a basic non-Italian will which would be valid in Italy to address an Italian property. You can download it here."

Bearandcub any chance of posting the sample of a basic non-Italian will on the forum.

Very informative indeed


Hi iloveitaly,

I've provided the link to the appropriate Studio Legale Metta website - please note I cannot vouch for this Company but they are the authors of the above article. Once you open the link click on the 'sample will' link and it's down near the bottom of the page.

http://www.studiolegalemetta.com/en/moreinfo.php


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 Post subject: Re: Italian Wills
PostPosted: August 6th, 2011, 6:19 pm 
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Location: N Ireland
Thanks for posting this bearandcub, it contains lots of useful information.


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PostPosted: September 10th, 2011, 11:50 pm 
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Hi Everyone,

We're new to the forum and just wish that we had found it a few years back for the help and advice that we could have done with when we were struggling with unanswered legal questions and buying our furniture

We've escaped from London have been living on the East Coast, very happily, I might add, for the past year.

I don't want to appear intolerant of other Brits on holiday / differences in culture / children etc but increasingly my hubby & I find ourselves cringing with embarrassment at the behaveour of other Brits, and in particular, their children.

In our experience over the last 12 months we have found a lot of Brits to be oblivious to their children's activities, ranging from sending other diner's drinks flying, to helping themselves to food from people's plates! Yes!! Unbelieveable though it might be, Brit kids have plunged their mucky mits into mine, and other people's food, while their parents turn a blind eye and then get stroppy when approached with a request to exercise control over their offspring.

I'm sure that other Brit buyers on this coast have bought their property simply because it is world's apart from the Spain/Greece/Portugal/Turkey
"all day English breakfast" / "all inclusive eat & drink" culture that attracts people in droves but I'm getting seriously worried that the East Coast could become another Benidorm in 5 years time !!

Britabroad


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 Post subject: Re: Italian Wills
PostPosted: September 11th, 2011, 8:33 am 
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Welcome to the forum, Britabroad.
Don't think that you have posted under the correct heading but it's difficult when you start posting to click the right buttons. You'll soon get the hang of it.

Where on the East coast have you bought?
We've bought on that coast and have rarely come across another Brit never mind children who steal food!!

As for another Benidorm, can't see it happening.

mags


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 Post subject: Holiday in Calabria
PostPosted: September 15th, 2011, 4:44 pm 
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Hello everyone did you all enjoy your summer holiday ,did you find more people visiting Calabria this year due to all the extra flights,


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 Post subject: Re: Italian Wills
PostPosted: September 20th, 2011, 10:21 am 
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lorica wrote:
Dear Paolo

Thank you for the information on Italian wills. Would you be so kind as to answer a few more questions on this subject.
1. You say there are 3 types of wills in Italy all reaching the same legal affect ... so why are there 3 options?
2. Should one include an Italian bank/Post office account in a will?
3. Could you please tell me how much one would expect to have to pay for the drafting of an Italian will. Options 1) 2) 3)
4. Option 3 Hand written will: Does the Hand written will also have to be delivered to a notary.
5. Lastly, should we expect to have a copy of any will we make?

Kind regards
Lorica


Dear Lorica,

Concerning your questions:

1) Exactly as you wrote, there are three types of will:
– public will (art 603 c.c.)
– secret will (art 604 -605 c.c.)
– hand-written will (art 602 c.c.)
They are the same in the substance, the differences are in the way they should be written and in the way they become notorious to the heirs.

In fact the public will has to be drafted by a notary with all the technicalities on law prescribed. The testator has to declare his own last wills in presence of two witnesses and the notary has to write down the exact words. In particular it is ruled by the art. 2700 c.c that states that the public will represents a plain evidence.The will has to indicate the exact place, date and hour in which it is been drafted, and has to be subscribed by the testator, the notary and the witnesses. When the notary hears about the testator death, he has to deliver a copy of the will to the record office of the Court of the place in which the succession has been opened and then has to communicate to all the heirs and/or legatee the existence of the will itself.

The Secret will is written and subscribed by the the testator himself, and it is given directly from him to the notary in a sealed envelope. The role of the notary is to seal the envelope up. There are two advantages about this type of will: one is that only the testator knows what is written, the second is that, after giving it to the notary, is impossible to lose or destroy it.
When the notary hears about the testator death, opens the sealed envelope and drafts an act in which states what is written on the will and what was the state of it. Then records the act and delivers copy of it to the record office of Court of the place in which the succession has been opened .

The Hand-written will, is the easiest, less expensive and most practical way to express the last wills. In fact it doesn't need the roles of notary and of witnesses. But is fundamental that it is completely written by the hand of the testator and subscribed by himself (without subscription it is absolutely invalid). It has also to contain a certain date.

After the testator death the person who owns the will has to present it to a notary (answering to your point 4*) who has to communicate the existence of the will to all heirs and/or legatee. Then he has to draft an act that states the identity of the person who presented the will and the state of it and has to reproduce the exact content of the will.

This act has to be subscribed by the person who had presented the will, the notary and two witnesses, and recorded to the “Agenzia delle Entrate” territorially competent and a copy of the act has to be delivered to the record office of the Court of the place in which the succession has been opened.

2) You are not obliged to put in your will an Italian bank or post office account, but you must do it if some of the goods included in the inheritance are deposited in it.

3) About the cost, it depends from the type of will you choose. For sure, the hand-written is the cheapest one because you can draft it by yourself assisted by a lawyer. For the price of the other types of will, you have to consider many details.

4) *Look above

5) Regarding the copies of the will: for the hand-written will, it is up to you to make two original copies of it and to give one of it to a notary. For the other types can't be released copies before the open of the succession but you are able in every moment to edit your will drafting another new one.

Hope this is clear.

Best Regards

Avvocato Paolo Zagami
Zagamilaw International Law Firm
www.zagamilaw.com


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 Post subject: Re: Italian Wills
PostPosted: September 20th, 2011, 8:42 pm 
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Paolo,

Would you like to comment on the 4th option - sticking with a UK will?

At the start of this thread you state:

REASON TO MAKE AN ITALIAN WILL: The heirs of a will that is not Italian (such as an English will) may have many difficulties with the transfer of any Italian asset. This is due to the fact that in this case the will must be authenticated by an Italian Notary Public before any asset can be distributed.

Your statement appears to be at odds with the advice from Nick Metta, which as I understand, is based on European legislation that has jurisdiction in Italy and the UK - see my post dated 4th August.


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 Post subject: Re: Italian Wills
PostPosted: October 9th, 2011, 5:04 pm 
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So having questioned the accuracy of the opening entry to this thread, the Lawyer concerned has not so far commented on the fact that apparently, you do not need to make an Italian will.

Am I the only one that is coming to the conclusion that, with a few notable exceptions, the Lawyers who choose to contribute to this forum, do so purely to further their own self-interest by selectively publishing the advice that benefits them?


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 Post subject: Re: Italian Wills
PostPosted: November 16th, 2011, 1:04 pm 
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Does the same succession laws apply for business assets too? What happens to the business assets if an italian resident with a business dies and has not met his contractual obligations? A load question I know but some idea of how the system works could be appreciated


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 Post subject: Italian Wills
PostPosted: October 31st, 2016, 9:42 pm 
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This subject crops up regularly.

Some people say Turkish inheritance Laws always take precedence over written wills that attempt to disinherit children, regarding immovable property in Turkey.

Other people have found lawyers who claim to be able to write such a will that will be accepted by the courts, but, as far as I know, without it having been put to the test.

Does anyone have first hand experience of a will being accepted by the courts that did not comply with Turkish inheritance laws regarding immovable property in Turkey?

Many thanks.

David


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 Post subject: Re: Italian Wills
PostPosted: October 31st, 2016, 10:35 pm 
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Location: Carmarthen, south west Wales / Santa Maria di Ricadi, Capo Vaticano
I have allowed this post although it is regarding Turkish Wills. There may be someone out there who can help but I somehow doubt it.


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