Accepting an inheritance with the benefit of inventory in Italy

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The rights of legitimate heirs

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The Italian law does not always allow us to freely decide on the destination of our inheritance after death…

Regardless of wishes expressed in a Will, some subjects have a legal right to receive at least a portion of the inheritance. The testator only has one quota of his assets to dispose of freely, which varies between a quarter and a half of total assets. This is defined as, “available quota”. The remainder of the inheritance is legally designated  for the spouse (or registered partner), the children and, in the absence of children, if they are still alive, the testator’s parents. These are all so-called, ”legitimate heirs”, or “forced heirs”.

The rights of legitimate heirs

If there is only one child, he/she is due at least half of the decedent’s total assets. This becomes a third of assets if the decedent’s spouse or registered partner is still alive, so a child would thus be entitled to inherit a third of the assets. If there are two or more children, they divide two thirds of the inheritance between them. This is reduced to half of the assets if the decedent’s spouse or registered partner is still alive because they would be entitled to a quarter of the assets. If the decedent and spouse or registered partner had no children, they would be entitled to at least half of the assets. Even in the case of a legitimate succession, if one or more children of the decedent pre-decease the testator or renounce an inheritance, their descendants qualify to receive that entitlement.

Parents and other ascendants of the deceased only become legitimate heirs in the absence of descendants. If they are alone, parents have the right to a third of the inheritance, reduced to a quarter if the decedent’s spouse or registered partner is still alive. The latter, is legally entitled to half of the assets.

The spouse or registered partner of the deceased, with respect to the property pre-owned by the deceased person or in common by the spouses, has the right to (i) remain in the family house, and (ii) retain the movable assets that furnish it. In this case, the other coheirs (if any) are not required to pay property tax (IMU tax  Imposta Municipale Propria) for the share they inherit.

Such rights remain upon the spouse, even if he/she renounces the inheritance.

The spouse or registered partner loses inheritance rights if a court judgement has found he/she was to blame for the breakdown of the marriage or registered partnership. On the other hand, the spouse who is not legally separated, i.e. there is no court-issued judgement, or who is not responsible for the breakdown of the marriage or registered partnership, has the same inheritance rights as a non-separated spouse.

The loss of inheritance rights is therefore not related to personal separation, but to a court-issued judgement of separation in accordance with article 151 of Italian Civil Code pertaining to marriage.

Forced heirs and the available quota

Legittimate heirs Inheritance quotas reserved and available
Spouse (or registered partnership) (in the absence of children and parents) 1/2 to the spouse (or registered partnership) 1/2 available quota
One child (in the absence of a spouse or registered partnership) 1/2 to the child 1/2 available quota
Two or more children (in the absence of a spouse or registered partnership) 2/3 to children (divided in equal parts) 1/3 available quota
Spouse (or registered partnership) and only onechild 1/3 to the spouse (or registered partnership) 1/3 to the child 1/3 available quota
Spouse (or registered partnership) and two or more children 1/4 to the spouse (or registered partnership) 1/2 to children (divided in equal parts) 1/4 available quota
Spouse (or registered partnership) and parents (in the absence of children) 1/2 to the spous (or registered partnership) 1/4 to parents (divided into equal parts) 1/4 available quota
Parents (in the absence of children and spouse or registered partnership) 1/3 (divided into equal parts) 2/3 available quota
When there is a Will, the law reserves a quota of inheritance only to the spouse (or registered partner) and the children (if the deceased had no children there is a reserved a quota for parents who are still living), so if the Will is valid other relatives cannot make claims.

For additional information about Italian succession and inheritance, you may find our Italian Succession Guide of interest.

Italian will and estate lawyers can help you with the Italian inheritance process

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Italian will and estate lawyers can help you with the Italian inheritance process

The Italian inheritance process can be a complex process

Italian will and estate lawyers

If you have been named as a beneficiary of assets in Italy, and you have decided to accept your Italian inheritance, it is a good idea to use a specialist Italian Inheritance lawyer to help support you. The Italian inheritance process can be a complex process, so obtaining the right legal advice and having the right lawyer on your side will be massively beneficial in helping you get through it. Especially if you are not resident in Italy. This article looks at some of the reasons why you should engage legal services. Read more

Partition of the estate

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Should the heirs, appointed by the Will or by law, be two or more, a condition of joint ownership of rights and duties concerning the inheritance is established among them. The assets and the real rights of the deceased compose the estate: the co-heirs take part in the estate in proportion to their inheritance quota, and, in the same proportion, they acquire all the credits and take over all the debts of the deceased.

Partition of the estate

The partition of the estate is aimed to cease the status of communion of assets on the estate among all those entitled (parties who take part in the communion). It is to be noted that every co-heir has the right to ask at all times for the partition of the common property, except as otherwise established by the testator. Furthermore, it is compulsory that all the co-heirs or their universal or special successors (legatees) must take part in the partition. The absence of some of the entitled will entail the invalidity of the partition transaction, which cannot be rectified with the following joining by the missing co-heirs.

According to the Italian national legislation, the partition of the estate can be executed by means of three methods:

  • Amicable (bargaining) partition
  • Judicial partition
  • Testamentary partition

Amicable partition

The amicable partition is a contract of which the purpose is to convert the co-heirs’ rights on ideal quotas (known as legitimate quotas) of the estate into rights on single assets forming part of the same, so that the value of the assets individually assigned (known as de facto quotas) equals the value of the joint ownership quotas.

Judicial partition

Should the co-heirs disagree on the opportunity or the way to execute the partition, each of them can request it to the judicial authority. The partition will be executed by means of the following stages:

  • Formation of the inherited estate, including the assets which have been gifted to the co-heirs by the deceased
  • Appraisal of the assets, according to their market value. The testator, however, can identify a person for the execution of the appraisal. If assets of the same category are divided, the estimate is not needed. In the other cases, the estimate of the single dividend assets is essential in order to create portions of value corresponding to the quota
  • Possible sale of indivisible assets: Before creating the portion, it may be necessary to sell the real estate units non-divisible to one-third, or to assign them to a co-owner in return for a corresponding amount of money to be shared among the co-heirs.
  • Formation of the portions due to every heir, which are as many as the co-owners in proportion to the respective quotas.
  • Hotchpot: consisting in the fact that those who obtain the inheritance have to confer to the inheritance estate all the assets which have been gifted to them when the deceased was alive, in order to share them with the other co–heirs, so as to prevent an unequal treatment among the co-heirs.
  • Assignment or attribution of the portions. The assignment occurs when the portions are equal, by drawing lots, while the attribution occurs when the portions are not equal.

 

Testamentary partition

Even without indicating the quotas, the testator can create the portions to assign to each co-heir, or he/she can simply lay down the rules in order to create them; in such case, an amicable or judicial partition will take place all the same, in which the rules laid down by the testator will be binding, unless the effective value of the assets does not correspond to the quotas established by him/her.

Please note, any statement made in this article is intended to be a general practical introductory explanation only and not formal legal advice. This firm accepts no liability or any responsibility for any statement made.

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How Can An English-­Speaking Italian Inheritance Lawyer Help with The Italian Inheritance Process?

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How Can An English-­Speaking Italian Inheritance Lawyer Help with The Italian Inheritance Process?

If you have been named as a beneficiary of assets in Italy, and you have decided to accept your Italian inheritance, it is a good idea to use a specialist solicitor to help support you. The Italian inheritance process can be a complex process, so obtaining the right legal advice and having the right lawyer on your side will be massively beneficial in helping you get through it, especially if you are not resident in Italy. This article looks at some of the reasons why you should engage legal services.

It can be an emotional time. The loss of a loved one makes families feel fragile and emotionally vulnerable. This is completely understandable. Dealing with inheritance issues on top of loss can feel very stressful. Having an attorney with legal expertise in Italian inheritance matters will help relieve some of that strain.

Protect your inheritance. A specialist Italian counsel will be acting on your behalf -­‐ and in your interests -­‐ throughout your case. This means that you can be assured of having a calm, rational, professional and trustworthy presence in Italy. You will also receive sound advice for all the issues that arise during the inheritance process.

Probate is a complicated area of law. Italian probate procedure is not always easy. It can be frustrating and time-­‐consuming. Your solicitor will be able to guide you through all the legal and tax issues that may arise.

A lawyer can help you gather evidence. You may need to be able to prove your legal entitlement. Your solicitor will be able to provide legal expertise and help you to gather the necessary documents and evidence.

A lawyer can support you in court. Most inheritance cases are uncontested and if there are claims, cases tend to be settled out of court because it ultimately helps to reduce the cost of the case. However, if your case does end up in court, having an attorney behind you can be enourmously advantageous. Having your own attorney will help ensure that all of your documents are in order, strengthen your legal position and add knowledge to your case. The above are just a few of the reasons why you should engage a solicitor when accepting an Italian inheritance. Above all, engaging the services of an Italian lawyer who speaks your language will give you the peace of mind that your case is being properly handled and that proceedings run as smoothly and efficiently as they possibly can.

We have produced a comprehensive Guide To Italian Succession. It is packed with legal advice about the Italian Inheritance process, which we hope you will find useful. You can find the guide here.

If you would like to consult an Italian inheritance lawyer about your case, please contact us.

Please note, any statement made in this article is intended to be a general practical introductory explanation only and not formal legal advice. This firm accepts no liability or any responsibility for any statement made.

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EU SUCCESSION REGULATIONS: INTRODUCING THE EUROPEAN SUCCESSION CERTIFICATE (ESC).

Reading Time: < 1 minuteA norm introducing the ECS (European Certificate of Succession) was published on the Official Journal n.261 – Ordinary Issue n. 83 on November 10th 2014,
The task of issuing such certificate will be handled by notary publics.
Primarily, The European Certificate of Succession is a new European document of uniform law, whereby the heirs, legatees, will executors or inheritance administrators will be able to exert their qualities and inherent rights, powers and facility matters in a foreign country, without any further paperwork.

• The ECS can be utilised in another EU Member State but is also valid in the issuing country..
• As of August 17th 2015, notary publics will have the possibility to release the ECS for all the succession procedures handled from such date onwards;

It is possible to request ECS to any Italian notary public (without any hindrances as to where the succession occurs and/or the assets are) in the following circumstances:

• If the deceased has his/her habitual residence or citizenship in Italy at the moment of his/her death;
• If such residence has not changed and the ECS was requested 5 years prior to his/her death;
• If the deceased has chosen to comply to the Italian law of citizenship at the moment of his/her death;
• In case there is a sufficient enough connection to the Italian State when the succession procedure is started and no other competent authority can act thereto.

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Requesting a national Visa for Elective Residence.

Reading Time: 2 minutesWhat is a national visa for elective residence? The visa for elective residence grants access to Italy to foreigners wishing to reside in the country and who reckon to be able to subsidise themselves finacially, without carrying out any working activity (Article 13 of Attachment A of the interministerial Decree MAE n°850 from 2011, defining the types of entrance visas and the requirements needed in order to obtain them).

Whad paperwork is necessary in order to obtain it? Foreigners wishing to obtain the residence visa, will have to provide proper and documented proof about the existance of a dwelling to be chosen as his/her own place of residence, as well as the availability of a relatively vast financial yearly income. Such income should add up to less than 31,000 euros a year (i.e. triple yearly amount as opposed to the amount estimated in chart A attached to the directive issued by the Ministry of Internal Affairs on March 1st 2000, reporting the means of sustenance needed for the access and the residence of foreigners in the State’s territory), and can come from the entitlement to substantial incomes (i.e. pensions, life annuities), from owning real estate, from stable businesses or from any sources other than subordinate employment.

Who is entitled to the visa other than the requesting party? The cohabiting spouse, underage and adult dependent children will receive the same visa, providing that the aforementioned income is deemed as adequate to the ends of their sustenance as well. Furthermore, the total amount of the monthly incomes will have to increase by 20%, in case the visa is requested for the spouse as well . Such increase will have to add up to at least 5% for each dependent child.

What criterion applies in case the dwelling property is purchased in Italy? Providing that a dwelling property is purchased in Italy, the Embassy and the Consulates will apply the criterion of the “minimal financial requirement” as according to the Italian regulation (about 31,000 euros a year). In other cases, in accordance with such regulation, the task of establishing the effectiveness of such requirements is entirely up to the Embassy.

How long is the visa valid for and what does the renewal procedure entail? The issued visa for Elective Residence will be valid for 1 year after which the visa can be renewed at the competent police headquarters providing that the original requirements are still valid. The entrance visa must be converted into a residency permit within 8 days from the arrival to Italy, as for all other typologies of long-lasting visas. Such residency permit cannot be renewed or postponed if the foreigner has interrupted his/her stay in Italy for a span which is longer than six months, except if such interruption was mandatory due to military duties or other significant and substantiated motivations.

Is any working activity legit with this type of visa? No, this type of visa does not allow carrying out any working activity in Italy.
Is there any other type of visa for longterm stayers? After 5 years, it is possible to request an EC permit of residency for longterm stayers which has permanent validity and allows its holder to benefit from the same treatment as the one granted to EU citizens.

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A few facts about Power of Attorney and its legal implications.

Reading Time: 2 minutesYou may have often heard of “power of attorney,” yet you may still not know exactly what its purpose is or when its use is considered proper.
In order to shed some more light on the subject, some basic facts on Power of Attorney are explained as follows together with the legal ramifications to purchasing and/or inheriting real estate in Italy.

What is Power of Attorney? A Power of Attorney – “Procura” in Italian, is a legal document by means of which “principal” gives certain powers to act legally on his/her to someone else: the “agent”;.
What is its content? A “Procura” clarifies exactly what powers the principal gives to the appointed agent.
What are the currently existing types of “Procura”?

1. In case of a “Procura Speciale” (Special Power of Attorney), limited powers are given to your attorney/agent in the following cases:
o If, for instance, you are purchasing an estate in Italy, but cannot be on site on the day in which the sale deed must be signed, you can bestow the power to sign such deed on your attorney / agent.
o If, for example, you live in the USA, have inherited assets in Italy, but are unable to make it to Italy to file for probate, re-register assets in your name or organize the legal division of assets from a communal inheritance, you may give your attorney / agent the power to handle the Italian succession procedure on your behalf.

2. A General Power of Attorney (Procura Generale) entitles your agent to do almost anything you could do.

In what circumstances can a Procura be revoked? Both Special and General Power of Attorney are usually terminated in case the principal dies or becomes legally “incapable”. However, if necessary, a Power of Attorney can be anulled at any time by means of the same legal document used to confer it in first place.

What should I consider before appointing an agent/attorney? If you are considering granting a Power of Attorney, you should be extremely careful about whom you chose as an agent/attorney as you are delegating the very management of your own affairs to someone else. Hence, it is extremely important that you entrust a reliable and competent person with this delicate task, preferably a professional. Conferring Power of Attorney to someone who does not have enough experience or that you might have a conflict of interest with is highly advised against.

What are the legal requirements to the issuing of a Procura? A Procura is a formal document, and many legal requirements must be met before it can be issued.
Generally, it is examined by the competent authorities carefully before it is released. The agent will need to sign the Procura in his / her home country in the presence of a public officer.
The USA, UK and Australia have signed The Hague Convention of 5th October 1961 which abolished the Requirement of Legalisation for Foreign Public Documents. In any case, an Apostille Certificate or Stamp, also known as the Hague Apostille,is required as proof of authenticity. Ensure to check the pertinent procedures with the UK Foreign and Commonwealth Office, the US Department of State and the Australian Department of Foreign Affairs and Trade.

A Power of Attorney is a very delicate matter. You are granting your rights and the handling of your affairs to someone else. Make sure to seek for the help of a professional before drawing up a Procura.

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