Probate and inheritance in Italy
More and more Danes are becoming involved in succession in connection with inheritance in Italy.
This can have several reasons: either because one of the parents, siblings or a family member is of Italian descent or because they move permanently to Italy or because they buy a holiday home in Italy.
There are big differences in the treatment of estates in Italy and in Denmark: The legal position of the spouse is generally lower than in Denmark and it is therefore worth seeking advice and guidance, e.g. when buying real estate in Italy. It may be advantageous to draw up a will or have a lawyer with knowledge of Italian law review an existing will or draw up a new one.
In Italy, there is no law of probate as known in Denmark: this means that it is the heirs and not the court who must ensure that probate is carried out.
As probate can be expensive and difficult, it often happens that properties are inherited in the family without probate taking place: this means that the owner of the property is, according to the land registry, a dead person who naturally cannot dispose of the property, e.g. upon sale.
This means that when you want to buy a home in Italy, you must first of all check whether a transfer has taken place and that the seller is registered as the owner in the land register.
When probate is completed, the heirs contact a lawyer who advises them on the matter and completes the proceedings.
The lawyer must receive a written power of attorney which is signed in front of a notary who ensures the identity of the signatory. In addition, the lawyer must receive a death certificate and an identity document (passport or “carta d’identità”) proving the identity of the heir, as well as a “certificato di famiglia”, i.e. a family certificate which proves the heir’s relationship to the deceased.
If there is a will, the lawyer must also receive the original.
It is important to note that a will in Italy is only valid if it is handwritten (olografo) or drawn up by a notary. A mutual will is prohibited.
The rules on forced inheritance also exist in Italy, so that spouses and children are forced heirs.
A Danish will may, however, be valid if probate takes place in Denmark and thus according to Danish rules and probate in Italy is only a partial probate, e.g. a transfer which is limited to an immovable property or/and possibly other assets, e.g. a bank account.
The lawyer then turns to a notary who, following instructions from the entitled lawyer, creates a document that we can think of as “an inheritance distribution deed” which subsequently forms the basis for the distribution of the inheritance. The task of the notary is not to advise the heirs, but rather to ensure that the deed of inheritance is drafted in accordance with the formal requirements of Italian law.
The heirs must expressly accept the inheritance and this declaration is also entered in the notarial protocol.
The lawyer calculates the inheritance tax that must be paid, collects it from the heirs and ensures that it is paid to the tax authorities. The estate processing must be completed within 1 year of the death. Otherwise, the heirs must pay a smaller fine.
As the estate process can be lengthy and complicated, it is recommended to contact a lawyer immediately after the death.
The “Deed of Inheritance” is submitted to the land registry and when this has been completed, the net assets can be distributed and paid out to the heirs.
The legal term “residence” does not exist in Italy. This means e.g. that “the estate cannot sell an immovable property that belonged to the deceased before the transfer has been completed and the heirs have gained access to the property.
It also means that the heirs must finance the implementation of probate themselves, as the “estate” cannot pay the costs. Eg. must the family share in paying funeral expenses.
The concept of “unchanged property” is also not known and therefore the inheritance of one spouse must be transferred upon his/her death. The surviving spouse has priority to live in the family home and to have household goods added to it. Often the surviving spouse has a lifetime usufruct right to the property.
It is important to note that registered partnerships are not recognized in Italy: this means that a same-sex couple does not have mutual inheritance in Italy.