Question about italian notary

07/16/2010 - 16:20

i am italian born but am resident in london and currently going through the process of inheriting an apartment property in sicily. i have to attend a meeting with a notary to sign a document for completion. there is a point of contention which i am unsure about and not sure if the notary is dealing with the matter correctly. please could someone explain what a notary is? are they answerable to anyone legal body/organisation? as i understand they deal with non-contentious issues, is this correct? any help with this matter would appreciated thanks in advance alex

Topic

Legal

Comment

A Notary (Notaio) is a person who -and I am not discussing how they became a notaio - has a great deal of power, effectively conferred by the state. Many notaii are competely honest persons (I would also say most nottaii). I do not think you should be afraid of a notaio. If you have a contentious issue with an eredità you NEED a notaio - this is the only person who can expain it all to you. If you are unhappy with the explanation you are free to consult a different notaio. Auguri!

What you are doing is a successione - which is bread and butter stuff for a notaio. He is appointed by and works for the state to stipulate transfers of beni immobili (immovable property), as well as found companies, write wills etc etc - Most notaios are honest, some are better than others - but the thing to bear in mind is that he doesnt work for you, he works for the state. If you are lucky he will act as an advisor, lawyer and friend - if not, he will just do what he is paid to do. however - he must apply the law to the letter - so if there is a contentious issue, he should at the very least tell you what the problem is and advise you how to overcome it. My notaio always says that advice is free, but work you pay for!

thanks Fillide and Ram, your answers are helpful maybe it should have been made clear by me in original post, i am more concerened by competence of the notary though integrity is also at the back of my mind. i have to say that i have not met or spoken to the notary, i am being informed of matters by my cousin who is in contact with them. i intend to get in contact with the notary myself shortly when i get the details. as i understand a solicitor in uk is answerable to the law society or solicitors regulation authority - is this similar in the case of notaries in italy?

There is no reason to susepct the notaio is not being honest - he has nothing to gain by not doing a succession right or not, but ultimatelythe choice of notaio is yours - you choose one and they do the work. A succession will have to take into account the deceaseds estate and the heirs - there is the law of legittima in Italy so the estate is usually carved up according to surviving relatives - and a bit of their will... The notaio is a member of the notarile college and you can make formal complaints but it would take alot to have a notaio investigated for malpractise or negligence. However, if you are really worried you should speak to a lawyer who is a specialist in succession law - Charlotte Oliver on this forum for example, and they will take care of it all for you.

thanks again Ram for taking the time to respond, the notary was chosen by my late mother so this i believe is out of my hands, i may well take your advice and seek a profesional second opinion.

I have worked with many different Notaries in all parts of Italy. They belong to a body called Consiglio Nazionale del Notariato which has a website with an English language version. Complaints against individual Notaries are not handled by the national body but the district council to which a particular Notary belongs. While Notaries are in the majority highly educated and very professional, there is no doubt that they do make mistakes which often go unnoticed in a deed of succession or purchase for many years and then are very costly to rectify. I notice that many deeds are drawn up by the Notary's assistant and then not property checked when they come to be signed. Notaries are not above the law and there is a large amount of caselaw in recent years on the level of responsibility and professional care they have to exercise. A declaration of succession should be a simple document but again requires careful preparation, calculation of catastal values of property, inheritance tax, and in particular the determination of heirs where a foreign law applies to the succession, which is not always straightforward. Alex can you tell us what the point of contention is? Charlotte

Hi Charlotte, Thanks for your concise explanation which to some degree puts my mind at ease I find it difficult to explain but here goes. The main point of contention is that the notary wants a cousin of mine to sign a document or act that my father bought out a share of their part of the apartment, Several years ago I saw a witnessed document/ bill of sale that my father purchased the part of the apartment from my uncle. I am also sure that the notary has this document but is refusing to accept it's authenticity. The cousin in question also doesn’t understand why she has to sign this and states that it’s nothing to do with her. Another problem is that I am being told by a cousin acting as an intermediary between myself and the notary that it is imperative that the cousin mentioned above and I have to attend in person to sign these acts. I have seen on the Italian consulate website that a ‘power of attorney’ can be set up which I may have to use myself due to ongoing health problems and to save my cousin the troble of having to travel over to Italy as well. What I’m being told and what I can gather from my own research is different, hence my concerns.

It sounds as though the Notary is probably being careful and may have genuine concerns about the original sale deed, which may mean that you father did not have legal title to his share of your cousins apartment. This may need to be rectified before it can be passed on to you. You can give a power of attorney for both a deed of rectification and for the succession declaration itself. I would suggest this is drawn up by the Notary in Sicily, translated so that it is in a bilingual Italian English text, and then you can sign it and have it legalized in London. It needs to be fixed with an Apostille at the Foreign and Commonwelath office. You wont need to go to Italy. Charlotte

Since 1 July, it is now technically possible to not be present in the notaios office for these things. If you choose a notaio in your home country - (a public notary) all of this can be done vi a computer link, where the original notaio takes half the fee and the notaio where you are taking the other half. of course this all depends on how 21st century your notaio in ITaly is. In my experience in Sicily, they cant even turn on a computer let alone use it. However, the government has now decided that technology should take its place in the notaios office, so there will be some, if slow, progress. Re the power of attorney - as far as I know, and Charlotte will correct me if Im wrong, its perfectly permissible to give a power of attorney to act on your behalf. If you grant one in the UK it must be translated, stamped and franked and postillo'd and the original transported to Italy to present to the notaio.

Dear Charlotte and Ram, I have today spoken to someone from the notary department at the italian consulate about the procedure for setting up a power of attorney and was given similar advice, coupled with your responses, this has taken a huge weight off my shoulders. i only have to get the details of the notary in sicily and i should be able to set the process in motion, i will keep you advised of the progress.