Usucapione (Usucapion or Adverse Possession)

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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.

Insider Tips for Buying A Property in Italy

Reading Time: 6 minutesIn a recent survey, we asked clients what their top tips would be for ensuring that Italian property purchases run smoothly. Here is a selection of replies, which we hope might be helpful if you are planning to buy real estate in Italy. In Italy you exchange legally binding paperwork and money at a much […]

Estate agents are neither lawyers nor independent. We are both.

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Estate agents are neither lawyers nor independent. We are both.

Don’t Leave Your Italian Property Transaction To Chance… Seek Independent Legal Advice!

Estate Agents are not lawyers

When buying or selling a property at home, most people wouldn’t dream of entering into a transaction without the assistance of a qualified and independent lawyer. Yet in Italy, many buyers and sellers, particularly foreigners, decide not to instruct a lawyer and instead rely on an estate agent to handle the transaction on their behalf. Many foreign property buyers find their way to our law practice this way. They have encountered serious problems; some have lost everything. Read more

De Tullio Law Firm and the New York Times

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De Tullio Law Firm and the New York Times

De Tullio Law Firm’s second contribution for the New York Times

One year after our first contribution for the New York Times, De Tullio Law Firm was interviewed for the second time to provide, once again, potential investors in Italy with useful guidelines regarding the buying basics of the Italian conveyancing process.

This time, the article is focused on the Riviera Ligure, one of the most sought-after places of the Italian country, but the legal information provided herein are extended to the whole Italian territory.

The article includes critical information, such as Italian Notary’s fees (Italian Notaio’s fees), legal fees and Italian property taxes.

De Tullio Law Firm and the New York Times - Riviera Ligure

Buying basics in the Italian Riviera

There are no restrictions on most foreigners buying real estate in Italy, said Giandomenico De Tullio, a managing partner at the De Tullio Law Firm, which has offices in Italy and Britain.

Transactions are handled by a notary, whose fee is negotiable, but typically starts at around 1,500 euros (or about $1,860) and varies depending on the price of the property and the complexity of the deal, said Gianluca Giovannini, a notary in Livorno. For complicated transactions and sales involving foreigners, it is a good idea to hire a bilingual lawyer as well, said Mr. De Tullio, who estimated that a lawyer’s fee would be about 1 percent of the sales price. In addition, there is a 22 percent value-added tax on both services.

De Tullio Law Firm and the New York Times - Riviera Ligure by night

The stamp duty is the buyer’s biggest closing cost, at 2 or 9 percent of the property’s assessed value, depending on whether it will be a primary residence or a second home, Mr. De Tullio said. (To get the primary-residence tax break, buyers must typically establish legal residence in the municipality within 18 months of buying the property, he said.)

Other closing costs include a building registry tax of 50 euros (about $62) and several other taxes and fees that add up to a few hundred euros. A rough estimate of closing costs on a 1 million euro property is around 30,000 euros (about $37,000), Mr. De Tullio said, but he added that it can vary greatly.” Read the full article here.

Guide to Buying Abroad with Family

Reading Time: 2 minutesThe Overseas Guides Company Ltd released a guide to buying abroad with family. As they said, “a holiday home is perhaps the most life-enhancing thing you will ever buy. It helps you get to know and love another culture. It can be more relaxing than a package holiday to the tourist sites – a holiday whenever you want it, for ever, and to pass on to your children. […]

Guide to buying abroad with familyA holiday home abroad has the power to keep families together. Siblings might fight like cats and dogs as children, but many find they appreciate each other’s company more as they get older. Every Christmas you promise to see each other more often, but by the summer you’ve drifted apart again. For older children who don’t want to go on the usual family holiday, for students who don’t come home as much anymore, a holiday home can be the glue that holds the family together. […]

BUT:
We’ve all heard about families that fall out over money. How can you protect yourself, your investment and your closest relationships? You need legal protections that will endure down the generations. Read on for some great advice on this, from specialist lawyers. […] Read more

Law of inheritance in Italy – Imposta di successione

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Law of inheritance in Italy – Italian inheritance tax

What is “Imposta di successione”?

Law of inheritance in ItalyItalian inheritance tax, “Imposte di Successione” was abolished by law no. 383 of 18 October 2001. Subsequently, the government re-introduced inheritance tax through law no. 286, dated 24th November 2006. The law has been applicable to inheritance cases since 3rd October 2006. Read more

Property Selling Guide

Reading Time: 7 minutesThis property selling guide focuses on the issues that a seller may encounter during an Italian property conveyance.

When selling an Italian property, there are some legal issues which should be seriously considered. Due to the language barrier and differences in property sellinglegal systems, real estate transactions in Italy can appear as a difficult and protracted process for foreign investors. The Italian legal process is obviously technical and might expose you to some risks. Considering the interests at stake in a real estate transaction, it is advisable that you seek the assistance of a qualified bilingual legal advisor, who has the competence to guide you through the process and advise on potential risks. Read more

Property Buying Guide

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Italian Property Buying Guide

This Property Buying Guide aims to cover key elements of the Italian purchasing process.property buying guide

For a more in-depth explanation, you may wish to read our comprehensive Italian Property Buying Guide.

The purchase of a property in Italy proceeds through 3 key stages:

  • Proposta irrevocabile d’acquisto (Reservation offer)
  • Contratto preliminare di vendita (Preliminary contract)
  • Atto di vendita (Deed of sale)

Once you have chosen your property you should engage the services of a solicitor, whether you buy through a real estate agent or directly from the vendor. The knowledge that an Italian solicitor has about Italian real estate law is invaluable – plus, your own solicitor is there exclusively to look after your interests. Read more