Moving to Italy changes the legal framework that governs your estate. While a previously drafted will remains valid, European succession rules tie the applicable law to your habitual residence at death, meaning Italian law may now apply to your whole estate.
EU succession rules and habitual residence
- Since 17 August 2015, Regulation (EU) 650/2012 determines which country’s law governs a cross‑border succession in almost all EU member states (Denmark and Ireland are exceptions).
- Under Article 21, the “connecting factor” is the habitual residence of the deceased at the time of death, not nationality or place of death.
- If you settle in Italy, Italian law will, in principle, govern the entire estate; the same logic applies to Spain, Portugal, France, etc.
Italy’s forced heirship (legittima)
- Italian succession law includes forced heirship, reserving a statutory share of the estate for the closest relatives: spouse or civil partner, children, and, if there are no children, the parents.
- Reserved heirs can claim their share regardless of the provisions of a will, and the calculation also considers lifetime gifts.
- This contrasts with many common‑law jurisdictions where testamentary freedom is broader.
Choosing foreign law under Article 22
- Article 22 permits a testator to choose the law of a country of which they are a citizen (at the time of the choice or at death) to govern the entire succession.
- The chosen law must be the one most closely connected to the testator, not merely a preferred jurisdiction.
- The choice must be expressed clearly in the will; ambiguous wording can lead to disputes and potential court intervention.
- Without an explicit choice‑of‑law clause, Italian law (and its forced heirship rules) will apply by default.
Procedural differences: no probate in Italy
- Italy does not have a probate process. Heirs formally accept the inheritance, and their authority derives from that acceptance.
- A foreign will is generally accepted, but it must be apostilled and officially translated before Italian banks or the land registry will act on it.
- The translation and apostille step is often the main cause of delays when using a foreign will in Italy.
Key questions for new residents
- Which law will govern your estate now that you reside in Italy?
- Can the documents your heirs will hold be used locally without court involvement?
These questions become especially pertinent when owning Italian property, as the property itself evidences habitual residence and must be transferred through the Italian land‑registry system.
Note: The choice of governing law does not affect estate taxation; tax obligations are determined separately.
Practical steps to align your succession plan
- Draft a short Italian will that disposes of assets located in Italy.
- Include a clear choice‑of‑law clause that aligns the Italian will with the existing foreign will, ensuring both point to the same governing law.
- Avoid clauses that automatically revoke all previous wills unless that is the intended effect.
- Execute the Italian will before a notary, as Italian law requires notarisation for wills.
- Coordinate the Italian will with your existing will and with any advisors handling the law or tax matters of your home country.
By addressing these points before or shortly after relocation, the transition to Italian succession law can be managed smoothly, preventing unexpected disputes or delays.
Source article: www.globalcitizensolutions.com
