Italian Wills: Making a Will and Inheritance Law in Italy

To be legally eligible to make an Italian will, a person must be:

• at least 18 years old
• the legal owner of the remaining assets
• of sound mind (capace di intendere e di volere); in the event of a dispute over the will-maker's mental capacity at the time of drafting the will, a court will rule on the case

Who Should Make an Italian Will

Italy recognises an international will as valid, but it is recommended that a foreigner make a will in Italy if they:

• live permanently in Italy
• own immovable property (a house, flat or land) in Italy

The main purpose for making an Italian will is to simplify matters at the time of death.

Foreigners and wills in Italy

It is recommended that foreigners who are resident in Italy create an Italian will. Heirs of a will that is not Italian (such as an English or American will) may have significant difficulty with the transfer of any Italian assets. This is due to the fact that the will must be authenticated by an Italian Notary Public before any assets can be distributed. The notary (or other Italian legal professional) may have substantial difficulty, with regard to Italian assets, in resolving conflicts between foreign and Italian law as well as advising heirs and/or preparing suitable documentation to transfer the assets.

The cost of translating all pertinent foreign or English-language documents into Italian after the death of the foreign will-holder is likely to be greater than the cost of making an Italian will.

English nationals should note: Italian legislation is more generous than English legislation with regard to inheritance tax. This in practice means that small to medium estates are not subject to inheritance tax in Italy.

Types of Wills

Under Italian law there are three recognised types of valid will:

Handwritten Will (Holographic Will - Testamento Olografo)

This document is:

• personally handwritten by the person making the will (testator)
• dated (determining the most recent will in the event of there being several)
• signed
• written on any paper or another medium, in any language

Although it is a simple document, it is advisable that it be checked by a lawyer to ensure that all the formal and substantive legal requirements have been satisfied.

It can be a very simple letter or document drafted directly by the testator. There is no need for witnesses and no attestation clause. 

Formal Will (Testamento Pubblico)

This document is:

• drafted by an Italian notary on the instructions of the testator
• read out loud by the notary to ensure that it complies with the wishes of the testator
• signed by the testator in the presence of witnesses
• recorded and stored with an Italian notary and therefore will not be lost or disregarded
• a fairly formal document
• created only with the assistance of a notary, with fees payable (notarial fees)
• disclosed to a third party (because it is a public will) and is not secret

The process: An appointment with a notary is made to explain the requirements and give instructions (not all Italian notaries speak English). The witnesses are typically clerks selected by the notary.

Secret Will (Testamento Segreto)

This is a will drafted or written by the testator and placed in a sealed envelope which is then delivered to an Italian notary. The contents of the remain secret until after the death of the testator when the sealed envelope is opened. Notarial fees for a Secret Will are less than those for a Formal Will.

The process: As with a Testamento Pubblico, an appointment must be made with a notary to deposit the sealed will.

Preparation of the Italian Will

When it comes to making a will in Italy it is recommended to get advice from a lawyer, ideally one familiar with both Italian and the will maker's national jurisdictions. Wills and probate matters involve taxation issues; an Italian accountant should be consulted for the preparation of the will (generally an Italian lawyer can direct a testator to an accountant - they may work closely together).

Italian law dictates that a minimum statutory share (Successione Necessaria) of the estate be bequeathed to immediate family members before the balance may be freely disposed of (see Inheritance in Italy, below). It is therefore important the will-maker understands the law and how it affects their assets.   

Will making is not a time-consuming procedure, but it is important to complete all documents accurately. It is suggested to contact an Italian professional (lawyer or Notaio) for guidance. While it's recommended to avoid frequent changes to the terms and beneficiaries, a will can be changed to accommodate a change of circumstance at any point until the time of death. The most recently made will is considered valid.

In case of emergency, a testator may write their will directly or contact a notary who can receive the last will.

After the Death of the Will-Maker

In order to settle the deceased's estate, it must first be ascertained what kind of will the testator made.

Collect all the documents affecting the testator's properties and contact an Italian legal professional (lawyer, notario, accountant or geometra) to make the Declaration of Succession (Dichiarazione di Successione).

The Dichiarazione di Successione must be made by the deceased's heirs within six months of the date of death. 

In order to make a Declaration of Succession: 

• complete the Ministry of Finance (Ministero delle Finanze) form Modello 4, on which all the assets should be noted
  • The form can be downloaded: Click here (PDF)
• apply to the Tax Office (Ufficio delle Entrate) of the town where the deceased was resident
• if the deceased was not resident in Italy, the declaration of succession must be presented to the relevant Tax Office in Rome

The legal professional will be able to complete the procedure by registering the new owners at the Land Registry (Ufficio del Catasto). A registration tax must be paid, which is calculated based on the value of the assets.

Inheritance in Italy

Under Italian succession law certain members of the family - "forced heirs" - are automatically entitled to a share of the deceased's assets at the time of death. This compulsory share or forced heirship is called legittima. 

The following are entitled to the statutory fixed share (Successione Necessaria) of the deceased's estate:

• The spouse (husband or wife): A separated partner has the same right to the share of legittima as a non-separated partner, provided that the judge has not declared them responsible for the separation. A divorced partner does not have any right to the legittima
• The children: (legitimate, legitimated, illegitimate or adopted)
• The ascendants: when no children (or their ascendants) are alive at the time of the deceased's death

These particular rules on forced heirship apply when the deceased is an Italian national.

A foreigner may follow the same rules as an Italian national providing their own national law allows it.

Benefits of an Italian will

There are benefits to creating an Italian will and following Italian law: 

• It minimises the risk of confusion or conflicts among the heirs at death (if the legittima has not been adhered to, a family member who believes they are entitled to part or all of the estate may challenge the inheritance)
• The survivors may pay less in taxes if the assets are left in accordance with the legittima
• It ensures that the Italian authorities understand the situation; therefore the costs of executing the will are likely to be lower

Italian Inheritance and Foreign Wills in Italy

The Italian legal system has adopted the principle of unity of succession; as a consequence, the legislation of the deceased's country of nationality applies.

For example, if an English national buys a property in Italy, it is registered in their name and they still own it at the time of their death, under the English rules its succession should be regulated by the Italian law of succession. The Italian legal system accepts this "referral" by the English law and therefore the succession of this asset will be regulated by Italian law.

The rules of forced heirship can apply to a foreigner with an Italian will. In the will it is possible to choose the Italian or the foreign Law with the electio legis which is a codicil through which a person can decide to which legislation their estate is to be referred after death. 

By the Italian rules of forced heirship, even if the deceased has left all their assets to a person who is not a compulsory heirs, the compulsory heirs will still receive their share.

General guidelines suggest that a foreigner with a Italian assets with a value of more than €350,000 and a simple family structure should choose to make a will under Italian Law to save on tax charges. However, if a foreigner with Italian assets wants to be free to choose their heirs they should insert the electio legis in the will providing this complies with their country's law.

Invalid Wills or Intestacy (Successione Necessaria) 

If a will does not exist for the deceased, or if an existing will has been declared invalid, the Italian general rules on intestate succession apply. Therefore the closest relatives of the deceased are entitled to a share of the assets in accordance with the provision of Italian law.

British citizens: English law has adopted the principle of scission, which means that the succession of movable assets is governed by the law of the deceased's domicile (the country where the deceased lived), while the succession of immovable assets is governed by the law of the situs (where the property is located). For example, if a British citizen without a will has a property in their name in Italy at their time of death, under English law the inheritance should be regulated by the Italian law of succession. The Italian legal system accepts this "referral" by the English law and therefore this asset is regulated by the Italian law of succession.

Italian lines of intestate succession

• Surviving spouse: A surviving spouse is entitled to inheritance if they are still married or legally separated at the time of death. A divorced spouse is not recognised
• Spouse and one surviving child: one half goes to the wife; one half to the child
• Spouse and two surviving children: one third to the spouse; two thirds to the children

If there is no surviving spouse, the following are entitled to inheritance:

1. Parents, siblings (brothers and sisters) and their descendants
2. Uncles, aunts and other collateral (nieces, nephews and so on)
3. The Italian State (Stato Italiano)

Italian Inheritance Tax

Italian inheritance tax was abolished in 2001 then consequently re-introduced by the government. Heirs are required to pay Inheritance Tax when they present the declaration to the competent office.

Italian Inheritance Tax is levied at three different flat rates, on the whole or part of the Estate of the deceased with reference to the entitled beneficiaries, as follows:

• 4% where the Estate or part of the Estate devolves to the deceased's spouse or children, with a nil rate band up to €1,000,000 each (the so called "Franchigia")
• 6% where the Estate or part of the Estate devolves to brothers or sisters (subject to an exempt amount of €100,000 each) and to other relatives of the deceased up to the fourth degree (without any "exempt amount")
• 8% where the Estate or part of the Estate devolves to unrelated parties. Where the Estate or part of the Estate devolves to one or more disabled children, the exempt amount is increased to €1,500,000
• Where the Estate includes a business or a substantial shareholding in a company, whatever the amount, these are not taxed if they pass to the children of the deceased and if the children undertake to continue the business or control the company for at least five years

Related Information

• Wills and inheritance (specifically for UK citizens) from website ItalyUKLaw
• A list of English-speaking Italian lawyers and notaires from the US Consulate in Rome
• Information (specifically for Americans) from Italian Legal Language Services  

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Information by Avv. Carlo Bottino of Studio Legale Bottino - Bottino Law Firm
Piazza Cinque Giornate 3, 20129 Milano / via Cascione 25, 18100 Imperia
Tel: 0183 767185 / 02 87396758 / Fax: 02 99981461 / e-mail / Website
Copyright © Avv. Carlo Bottino 2008 All Rights Reserved