Do we need an italian will?

06/29/2011 - 19:51

We are an English couple resident in the UK with a small property in Italy. We have two adult children. All we want from a will is to leave everything to the surviving partner if one dies, and everything split equally between children if we both die. Our English solicitor says she can't cover our Italian property in our English will, and that we need an Italian will just for the Italian property. We have been quoted 1200 euros for a public will by an Italian notary, which is a lot for us.If we write our own 'testamento olografo' instead of paying a notary for the public one, will this be valid? Alternatively, the default Italian rules (part to the partner, part to children) would be acceptable for us - but would the inheritors have problems selling the property later from lack of any formally written will as proof of ownership?Thanks for any adviceGraham

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Legal

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Hi Graham - 1200 Euro are really a lot...you can check the article below, it could be of help: http://www.italymag.co.uk/italy-featured/property-review/good-news-itali... Good Luck! G

I think (THINK) that you can handwrite an A4 sheet (signed and dated) yourself which will have a standing in Italy. Things have changed recently and the latest understanding that I have is the your country of residence's will has priority. There is a lot of info on this site re this.... http://www.italymag.co.uk/community/group/italian-succession-law Try this, a very knowledgeable lady (Charlotte) runs the group Good luck, S

Thanks both. The last post in the italian-succession-law group was over a year ago, which is why I posted here - I thought that group was defunct. giorgiotan: Having read the article you recommended, it seems we should probably go back to our UK solicitor and argue with her to let us add the property to our UK will. But she doesn't want to let us do this, since she believes it will not be valid (I believe on the advice of the UK Law Society). sprostoni: I thought the 'A4 sheet signed and dated yourself' was called a 'testamento olagrafo', which is what I was asking about - could we write one of these in Italian and make sure it was mentioned in our UK will? Have I got the name wrong? Graham

As you pay the Solicitor they should do what you tell them, and to leave an item like this out of your Will is neglectful on her behalf. European Law is accepted in all Countries so if your Will is legal, signed & witnessed then anything (within reason) should be upheld in any country. If you make an unambiguous statement to include ALL properties you/jointly own then this should cover it. Our Will stipulates all property and effects wheresoever held, and our Solicitor was happy with that....

Get an Italian certified Copy done whist you're at it....you know what the Italian Legal system can be like if it's not translated...

I have had recent experience of an Italian will. You need an Italian will if you are a resident.It is hand written in italian, not witnessed as in Uk, and under Italian law property is left thus - half to surviving spouse and equal amounts to children. It is not written by the notaio until after death. My father-in-law left a handwritten copy with the notaio, but that is not normal practice. He also had property in UK which we thought was a separate item, but domicile in Italy is only accepted by the UK tax office if the estate is less that UK inheritance tax level. The Italian side of the business has been completed. The UK side is still in motion after 9 months!

I don't think HMRC can accept/ not accept an italian domicile if the value of the estate is less / more than a certain amount. I am not saying they won't try but you have to fight them if they do so, why give your parents hard earned cash to a government that will spend it either on illegal wars or supporting bogus asylum seekers... HMRC will try every trick in the book but in many cases they have been given a bloody nose in tribunal regarding domicile cases. They always hope that heirs can't be bothered with the hassle and pay up but if you get a good brief you have a good chance of coming out on top. I have a sought advice from a tax adviser on all this and what I have been told is that until something needs sorting HMRC will not disclose ones domicile status. The bottom line is to try and dispose of some of the assets to children. The DTA also comes into play regarding tie break rules on domicile / residence. At the end of the day I would get a good brief and I know that in a few years time I will have to deal with this iht business between italy and the uk and i know that probably hmrc will try to pull a fast one but I will happily pay thousands of pounds to the best barrister at law expert in international taxation. You are talking 300 quid an hour fees but at the end of the day if the brief costs me 50k and it saves me 200k of iht then so be it...I'd rather pay a professional than see my parents money squandered by millionaire politicians who have their own estates wrapped in complicated trusts to avoid iht themselves... Also may I add that the 17 years out of 20 years rule does not apply where there is a DTA treaty in place. Also the bottom line is in my opinion UK HMRC will not be able to know what money you have and what property you have inherited in Italy...draw your own conclusions......it is up to you whether you declare assets in Italy or not...italian banks do not release details such as these willy nilly......io non so' niente....

Now that has thrown me into confusion rosietat, am resident but not citizan, and had understood that UK will applied.

My Father-in-law was Italian born, but had a UK passport, not an Italian one, so he was only an Italian resident and a Uk national. He came back to Italy in 1985 and did not go back to Uk again, which under UK tax law would make his domicile in Italy. The Italian will was was executed by a geometra and no question was asked about any UK property, but the UK tax office form iht400 which has to be filled in by a non domicile asks about the value of foreign assets and the UK solicitor said if the estate came above inheritance tax level they would not grant him non-dom status - crafty! My advice is give it all away now.

"My advice is give it all away now." So how do I give my holiday home to my 2 kids now - to avoid UK Death Duties - WITHOUT spending a fortune doing it??????????? [I've had lots of conflicting advice - and am totally confused]

Your UK solicitor is wrong in her advice. An English will which does not contain any geographical restriction, or states"this will shall cover my worldwide property", is absolutely valid for a succession to property in Italy. It is preferable in my experience to have a separate Italian will, especially if your spouse and children do not speak Italian, mainly to spare them confusion and delay after your death in dealing with the succession procedure in Italy where there is property involved. However it is not at all essential, especially in a case like yours where your heirs are your immediate family. I would not receommend attempting to write your own holographic will, and in any case as I have said it is not necessary. After your death your English will (and also a Grant of Probate in the UK) would need to be translated, legalized and deposited in Italy with a declaration of succession. I hope this is helpful and puts your mind at rest. You can ask your solicitor to ring me! Charlotte Oliver

Can i add to Charlotte's advice that if you decide to make an Italian Will to simplify the obtaining of a grant of probate your English Will should state that your Italian property is excluded. Also i would mention in case people are worried that virtually all Wills made in the UK through solicitors are expressed to cover all the testators property "whatsoever and wheresoever" or something similar; nevertheless it is sensible to check.

Summing up, always go to a solicitor who knows what he/she is doing and who is competent.

I am now confused, not difficult when it comes to tax law. I had thought that as I have two wills, one in the UK and one in Italy covering my assets in each country, that each set of assets would be treated under the law of the country concerned. But here it is said that HMRC will still seek to tax your assets wherever you own them, irrespective of the tax liability or not in the country concerned. Is this indeed the case? C

Sibillini If the UK consider you "deemed domiciled" in the uk at the time of your death, and that means if you were "resident" in the UK for at least 17 out of the last 20 years, yes your heirs would technically have to declare your worldwide assets for taxation in the UK. That means declaring the market value of assets in Italy on the Probate application. This has nothing to do with where you actually made your will. So in practice you might have to pay tax twice on Italian assets if you are still domiciled in the UK, although Italian tax is vitually nil in cases where the estate passes to the spouse or children, and if there is tax it is calculated on the valore catastale. If you do you can claim relief of what you have paid in Italy against the UK tax as there is a Double Taxation Treaty between these two countries.

Well, this is a new one to me !! If the UK consider you "deemed domiciled" in the uk at the time of your death, and that means if you were "resident" in the UK for at least 17 out of the last 20 years, Very interesting Charlotte ! S

Remember – you don’t have to be in the UK 183 days a year to be classed as ‘resident’ for inheritance Tax purposes. HMRC state;- Resident For inheritance tax purposes, residence has the same meaning as for income tax purposes. To be regarded as resident in the UK you must normally be physically present in the country at some time in the tax year. You will always be resident if you are here for 183 days or more in the tax year………. More is explained in http://www.hmrc.gov.uk/cnr/hmrc6.pdf where it talks about family ties, property in Uk etc etc making one resident, giving the following example Example 1 Sarah is a British citizen who has lived in the UK most of her life. She has homes in London, California and France and has spent substantial amounts of time at her other homes or travelling on business. The opportunity arises for Sarah to travel more on business, especially in North America and she therefore spends less time in the UK and more time in her California home. Sarah’s partner and their children are based in the UKand the family spends the summer together in France. During the year ended 5 April 2010 Sarah is present in the UK at the end of 43 days, although she typically arrives in the UK in the morning and leaves in the evening so many of the days she is in the UK do not get counted for the 183 day test. Sarah’s ‘end of day’ counts for the years ended 5 April 2011, 5 April 2012and 5 April 2013are 85, 110 and 90 respectively. The average for the four years to 5 April 2013 is just under 82 days. Although Sarah has been present in the UK at the end of the day for an average of less than three months during the four years under review, she has remained resident and ordinarily resident here. This is because her presence in the UK in all years shows a pattern indicating residence here and that such residence is ‘ordinary’ for her. There is nothing casual about her residence – Sarah has a home and family in the UKto which she returns whenever she wishes and her business allows. Sarah’s residence in the UK continues. Her presence in the UK is an integral part of the regular pattern of her life. The precise amount of time that Sarah spends in the UK does not affect this fundamental point. Sarah has been and remains resident and ordinarily resident in the UK. It is possible that Sarah is resident in France or the USA for the purposes of French or US federal and state income taxes. This does not affect her residence in the UK. If she is dual resident for any period it might be necessary to decide where Sarah is treaty resident for the purposes of the relevant Double Taxation Agreement. ........ In other words – they’ll get your money anyway when you die – so consult a Tax expert

Your executors will need to declare the value of your italian property to HMRC in the appropriate form before they can obtain probate in the UK, but the italian authorities are not interested in British Grants of Probate and only want to see your will that relates to your italian property. As you are British, you can only make an english (or scottish will if you live in Scotland) will, as has already been said, but I advise you to do a simple english will dealing solely with your italian property, which I do not believe that you will need to prove in the UK. If you have a printer for your computer, you can easily do it yourself.

Just a comment on Paolo's last comment, a British citizen does not have to make an English will, but would have the choice...." A will shall be treated as properly executed if its execution conformed to the internal law in force in the territory where it was executed, or in the territory where, at the time of its execution or of the testator’s death, he was domiciled or had his habitual residence, or in a state of which, at either of those times, he was a national." I do agree that there is the option of having a second English will drawn up in the UK (which is sometimes useful if the first will contains long and complex trust provisions) which refers only to the Italian property, can be easily translated into Italian after death and can be used in Italy to transfer the Italian property without the need to send the Grant of Probate to Italy. Charlotte

I am still confused what to do if you want to dictate who your property is left to if you are British, live permanently in Italy, no assets outside italy BUT DO NOT want to leave property according to Italian law. i.e. husband has no children, wife has child from previous marriage and on death neither party wants the husband's siblings to get anything. Would want everything to surviving spouse, then to son/step-son on second parties death.

Karen, the form of your will is valid if it made in the Italian form (ie public or holographic) as you are resident here or if you sign it here, but a simple English form will (ie signed in the presence of two witnesses) would also be valid as you are a British national. You therefore can make a will (in any of the valid forms and in either country) stating your wishes and stating that you wish English law to apply to your estate. After your death this will can be attached to a declaration of succession in Italy and your property would be transferred to your named heirs ie your husband or your son if he had died before you. Bear in mind the risks of making no will - if your husband makes no will and the new EU Regulation comes into force (probably 2013 or later) the law applicable to his succession will be the law of his place of residence ie Italy. So after that date Italian law would automatically apply and your husband's siblings would get a share of his estate (1/3). They are the "eredi leggittimi"in this case, they would not be heirs in the case of a succession where there is a will. The new EU Regulation also gives a person the choice to expressly state in their will that they require their national law to apply. Therefore if you make a will before or after the Regulation which states that you wish English law to apply, your wishes will be upheld and the siblings will not have a claim. I hope this clears it up for you. Charlotte Oliver

Thank very much for sharing your knowledge with us Charlotte We will certainly be re-looking at our situation which also involves property outside of the EU.

Thank you Charlotte, that is very clear. We made Wills in the UK but they predate our marriage, we were just living together at that time, thus my previous name is used. We do not go back to UK so not able to update those. I am fairly certain that they are no longer valid as we have since married, though the content is still accurate. Thanks again for your clarification.

Hi Karen, Marriage does revoke a previous will, according to English law, UNLESS you stated in that will that you were intending to marry a named person! It would not matter that the will was in your maiden name. You should therefore assume these previous wills have been automatically revoked and update your wills now. You could use the same text, and now specifying that you want English law to apply. I am assuming that the contents are accurate and have already been checked by a lawyer. You should state that all previous wills are revoked. The new wills can be signed and dated in Italy in the presence of two witnesses in the form of Englsih wills. It would be worth deposting these wills with a Notary Public for safekeeping. Charlotte Oliver

Hi Charlotte Our English Will was prepared by, and a copy is lodged with, a Solicitor in England. Unfortunately the intent to marry was not in the Will as my husband had not proposed at that time. So we could actually just copy the English Will (changing my surname) and then have it witnessed (in English) and lodge it with an Italian Notary? It doesn't have to be in Italian or prepared by said Notary? Thanks again Karen

I'll be interested to see Charlotte's professional response............I would have thought that what you are thinking is correct, but..........why not have it (professionally) translated and lodged (not prepared) with the Notary ? Also (to save Charlotte time)................can we somehow post a SINGLE, UNCOMMENTABLE post outlining this example to lots of others for the future. It is a regular topic ? S

I think a will is a very personal document and every individual's case is different, so its not possible to have one answer that applies to everyone. In Karen's case as a British citizen who has already instructed a lawyer to draw up a will in the UK, she can re-write and execute her English will in Italy, written in the English language. She could give the original to one of her Executors for safekeeping, keep it at home (at her risk!), or could "deposit" it with a Notary as a "secret will". After her death her heirs would need to translate and "publish" this will. Beware many Notaries may not be familiar with foreign wills and may not always accept that a foreign will can be published. It would be useful maybe to share on the forum Notaries that have experience in dealing with wills/trusts and successions of foreign nationals and in particular in working in English - Giuseppe Ramondelli in Rome and Francesco Steidl in Florence are two who I would recommend highly. Karen's case aside, the general rule should be, if a person is living permanently in Italy and has no assets in the UK, and has a particular family situation that makes it important to state wishes in a will that would only be valid in English law ie leaving the entire estate to a spouse and not to the children, they should instruct a Notary to draw up a public will in Italian (or bilingual). This is expensive, but takes away the need and costs for the heirs later to translate or publish the will or explain the implications of a foreign will, and ensures that there is a document stored in the National archives which will never be lost or destroyed (it happens!) or open to challenge over its validity. Charlotte

Charlotte, I thought that a will could not override the leggittima. Am I wrong? What happens if a parent leaves the house to his child and the parent's wife is happy with this. Does part of the house also have to go to the mother regardless of the will? Many thanks

When you refer to the "leggittima", you must be aware that the category of heirs, and their shares, are different in Italian law depending on whether or not there was a will. For example, if a person died intestate, and left only a husband and siblings, the siblings would have a claim to one third as "eredi leggittimi". If a person had made a will, the husband in Italian law would be entitled to one half the estate (if he had been left less in the will), but the siblings to nothing. However, the starting point for all British citizens should be English law (unless they have dual nationality and one of those nationalities is Italian). An English will can be properly used to transfer property in Italy to the chosen heirs in accordance with English law. This is because Italian law states that a persons nationaity is the applicable law governing their succession. Therefore in answer to your question, it is perfectly possible for a parent to leave a property to their child and not the spouse. However, English law states that the law of succession shall be the law of the place where immoveable property is situated. This is a conflict which at the moment has no clear resolution, but in practice is noly a concern if an heir (who would have a claim in Italian law) decides to challenge a succession in the courts, AFTER the property had been transferred to the heirs named in the will, or those claimed to be the heirs under the English law of intestacy. Under the above example the spouse could claim she had rights in Italian law, and the courts would have to decide which law prevailed and whether the will could override her share. There is no decisive caselaw on this point in Italy. However interesting to note that in two similar Spanish cases, the courts have agreed that a British testator should have the freedom to make a will to leave property under English law, overriding the rights of the "leggittimi". The law will change in the years to come with the EC Regulation on Succession. Charlotte Oliver

Charlotte, To clarify further, for this scenario: Italian national father owns property in his own name in Italy, mother is dual national italian british. Can the father write a will and leave the property to the child only or is the mother entitled to leggittima no matter what the will states? Thanks

Yes the father could make a will leaving the Italian property to his son. By law the mother could if she chose to challenge this after his death, she has an absolute right to a share in Italian law. BUt if she did not challenge it the succession would follow the will and the proeprty transferred into the name of the son. If there was any concern from the son that she might want to claim her share up to 10 years after the death of the father, the wife could sign a public deed in Italy stating that she fully accepts the terms of the will and renounces her right to challenge it.