Do I Need a Will?

Wills in Italy

Starting Point

The first step toward answering this question is getting:

• your details – including your nationality, current place of residence, and expected place of residence when you pass;
• as accurate a listing as possible of all of your assets, the place in which they are located, the current value, the purchase price (or base costs for financial assets);
• copies of purchase deed(s) and/or visura catastale (land registry extract) for any Italian real estate;
• a listing of to whom you would like your estate to go and in what shares;
• a listing of your family members, names, dates of birth, place of residence and legal relationship  to you;.
• the options as you see them in terms of gifting part of your estate to heir during your lifetime (bearing in mind that once you make a gift you cannot change your mind).

Where we can help

Based on this we can advise on 

• the inheritance tax and other tax costs which will be due on your death and any scope for legitimately optimising the position;
• whether a will is necessary/advisable  at all – if you will be resident in Italy at the time of your death and are leaving property to your forced or legitimate heirs within the legal limits, a will may not be required at all, especially if your are tax resident in Italy at the time of your death.
• what kind of will is required/opportune – there are choices between a handwritten will or asking for the support of an Italian notary.

Having identified the tax aspects and identified the legitimate heirs the arrangements for the most appropriate form of will or wills can be decided upon. 

Wills in an all Italian context

It should be noted that only around 20% of Italian residents die after having made a will. This is a reflection of the forced heirship and intestate succession rules which means that on the whole the estate of deceased person passes to the spouse/civil partner and children in determined proportions.  A surviving spouse or civil partner is also guarantee by the law a right of habitation  – a registrable legal right to occupy a property occupied as primary residence (“prima casa”) for the rest of their lives, as will as the right to use the chattels in the family home.  The right usually does not extend to property not demarcated as a “prima casa”.

The relatively small percentage of wills per head is also a reflection of  the relatively generous Italian Inheritance and Gift Tax thresholds which mean the tax applies only on larger estates.

In the presence of the forced heirship and intestate succession rules you may wish simply to let Italian law handle your succession and go with the flow. If, in your particular circumstances, your estate is going to pass to a spouse/civil partner/children, there may not be much point in making a will at all. 

Good reasons for making an Italian will

However there are a good number of  reasons for making a will especially in the following circumstances:

• Where you would like to indicate third party beneficiaries outside the family, ideally within the scope of the “Disposable Share”, for a part of the estate or certain determined assets or objects of affection. 
• Where passing part of your estate to a spouse/civil partner, could increase the overall inheritance tax bill, as a result of “bunching” assets in the estate of your spouse or child, resulting from exceeding the tax exempt threshold. 
• Where you might want to “skip a generation” and leave your estate to grandchildren, where your children are considered able financially to “look after themselves” and where bequeathing your estate to a child could result in exceeding the Italian  tax exempt threshold.  or  in liabilities to foreign inheritance or estate taxes.
• If you are resident outside Italy, and have a single foreign will.  An Italian will ease the “probate” or succession process  (see below for an overview of this process).  Preparing an Italian will requires exclusion of Italian situated property from your general foreign will.
• If you are resident outside Italy and/or own assets abroad, preparing a will under Italian law entails consideration of  Italian forced heirship rules) and can operate to ring-fence non Italian property from any claim on that foreign property under those rules.   
• The steps for preparing a will anyway involves useful consideration of other connected issues:
  • the preparation of a listing of assets, location, contact person, account details, which is anyway a useful project to ease administration of your affairs on death
  • guardianship of minor children and pets, if any, in event of untimely death 
  • what happens in the event that you become incapable of managing assets, by reason of ill health or infirmity
  • whether you wish to appoint an executor or executors – unusual in an Italian context except possibly for more complex estates- as the heirs are responsible for managing the succession procedures, but perfectly doable if you wish 
  • names and details of professional advisers in Italy  (notary, attorney or commercialista) who can assist the heirs, if no executor is appointed, and who may be in possession of useful documents (real estate deeds, tax returns, financial intermediaries etc.)
  • preparation of instructions  to heirs,  which can be updated from time without particular formality, to apply  to specific gifts to specific beneficiaries (e.g.  your workshop tools, or model railway set). Whilst this might not create a a legal obligation for the heirs to follow the instructions, if they can be relied upon to accede to your wishes, this a flexible way of allowing non registered assets of small value (in money terms, they may be greater in sentimental terms) to go to whoever you want.