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Italian Wills and Estates Law

What is the general law regarding Estates and Wills in Italy?





Q: What is the general law regarding Estates and Wills in Italy?

Overview of Italian Estate and Wills Law

The succession to the estate of a deceased person, also known as succession ‘mortis causa’ (i.e. because of death) is the transfer of assets, rights and obligations by reason of death from a deceased person (referred to as ‘de cuius’) to one or more parties entitled (referred to as ‘heirs’). Such a succession is regulated by the Italian Civil Code ('Codice Civile').

Italian Estate Law generally  provides two different kinds of succession: 

A. Statutory intestate succession (or succession ‘ab intestato’), if there is no will; or
B. Testamentary succession, if a will exists.

1. Italian Statutory Intestate Succession

If the decedent did not execute a last will and testament, or it is declared null and void, or the decedent gave by will just a part of his or her estate, an intestate succession commences.
Italian Estate law provides that, depending on the people surviving the decedent,  the estate  is distributed among:

  • The spouse,
  • Legittimate or natural children,
  • Legittimate or natural ascendants,
  • Collaterals,
  • Other relatives within the 6th degree,
  • The State.

By way of an example:

  • If just the children survive: all the estate is distributed among them in equal parts;
  • If children and the spouse survive: ½ estate is distributed to the spouse and ½ to the child, if there is just one child; 1/3 of the estate is distributed to the spouse and 2/3 to the children, if there are more children;
  • If just the spouse survives: he/she is entitled to all the inheritance;
  • If the spouse survives, with ascendants and/or collaterals, but no children: the spouse is entitled to 2/3 of the inheritance and 1/3 will be distributed among the ascendants/collaterals.
  • If there is no surviving relative and the decedent did not drawn up a last will and testament, all the estate is distributed to the State (escheats to the state). 

2. Testamentary succession     

The last will and testament is the instrument ultimately fixing the disposition of real and personal property at the testator's death.

According to Italian estate law, the testator can dispose of his estate by last testament and will just with reference to the so-called ‘quota disponibile’ (i.e. disposable portion of the estate); a legal portion (so-called ‘quota legittima’) must be reserved to some subjects provided by law, called  necessary heirs or ‘legittimari’ (the spouse, the children and, in absence of children, the ascendants).

The succession of the ‘legittimari’ is also called necessary succession. Even with the existence of a valid last will and testament, the Italian estate law guarantees to some relatives the right to take over from the decedent in a part of his estate, even against his will so that he cannot dispose of all his goods.

The portion of the Italian estate the testator can dispose of depends on the surviving ‘legittimari’ and it is precisely regulated by the civil code ('Codice Civile'): by the way of an example, if the testator dies leaving just the spouse, the portion of the estate reserved is 50% so he can dispose of the remaining 50%; if the testator leaves the spouse and one child, the portion of the estate reserved by law to them is 1/3 each, so the disposable portion is 1/3; if the testator leaves the spouse and more children, the portion of the estate reserved to the spouse is ¼, ½ of the estate is reserved to the children, so the disposable portion is ¼.

Moreover, the last will and testament must respect the requisites provided by the Italian civil code ('Codice Civile'):

  • Holographic Will: is hand written, dated and signed by the testator.
  • Public will: is received by a notary public at the presence of two witnesses and signed by the testator.
  • Secret will: is drawn up by the testator and consigned to a notary public at the presence of two witnesses by the procedure provided by law.

Special kinds of last will and testament also exist.

The last will is null and void in the cases provided by law; for example if:

  • The holographic will is not hand-written;
  • The testator is of unsound mind;
  • The will has been revoked by the testator;

If the testator disposed of his estate injuring the portion reserved by law to his necessary heirs, the last will and testament is not automatically null and void but they can bring an action before the Italian Court to have their right to the reserved portion recognized.

Please be advised this article is being provided for informational purposes only This article is not intended to provide, and should not be relied on as a source of, legal advice. Marzano Lawyers PLLC expressly disclaims all liability based on any information contained in this article.


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