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The European Regulation [n. 650/2012], entered into force on 17 August 2015, has set out a principle regarding International Estates. The difference between moveable and immovable assets has been disregarded and the only element to keep in consideration is the “habitual residence” of the Deceased. Accordingly, the legislation which governs the distribution of the Deceased’s Estate (both moveable and immoveable) is the law of the country in which the deceased resided. The Regulation has specified that this criterion is to be adopted regardless of whether the country is a member of the European Union. This legislation applies to all Succession Procedures where the deceased has passed away on or after 17 August 2015.
Considering an Australian Estate where there are assets sitting abroad, the general belief that an Australian Will is not valid under a foreign jurisdiction (i.e., in Italy) or does not cover these assets, is not correct. Specifically, under Italian Law, a foreign Testament is valid as long as it is valid under the foreign Jurisdiction where it has been executed, both for its form and content. Nevertheless, unless the Will complies with the Washington Convention criteria [International Will – Washington, D.C. on 26 October 1973], to make such a Will effective under the Italian Jurisdiction additional steps must be undertaken, as follows:
- having the Probate be granted by an Australian Supreme Court;
- having the Grant of Probate (or Letter of Administration) and the Will translated in Italian by an accredited translator; and
- Having the Grant of Probate (or Letter of Administration) and the Will sealed with an Apostille [The Hague Convention 1961 of which Australia is part from 1994].
By having the above legal actions finalised, it will be possible to Grant the Probate in Italy through an Italian Notary and so to have the Estate distributed in accordance with the last will of the Deceased.
However, what if there is no Testament or the same is unapplicable under the Italian Jurisdiction?
If an individual dies without a Will (intestate) or the Will cannot be granted, it must be activated the “intestate” procedure. According to the Italian Civil Code, it has to be determined which family members have legitimate inheritance rights and in which proportion to divide and distribute the Estate.
In accordance with Italian Inheritance law, family members who are entitled to be considered as a heir include the following:
– The spouse;
– Children (legitimate, natural or adopted);
– Legitimate ascendants (father, mother, grandfather, grandmother);
– Relatives;
– Other family members up to the sixth degree of kinship;
– The State.
The so called “Dritto di Precedenza” (Precedence by Proximity) assists in determining the share of the Estate to the closeness of kinship, excluding the most distant kinship members. In the case where family members are of the same degree, the Estate will be evenly split between these parties. Ultimately, if there are no beneficiaries the assets forming the Estate will be distributed to the Italian State.
The above are some of the general aspects governing Estate matters in Italy. However, due to the great differences between the two Legal Systems (Australia and Italy) Common Law vs. Civil Law these should be carefully considered and approached with the assistance of an expert. An issue to take in consideration is that Italian Succession Law does not allow to sell assets forming the estate prior to the distribution and within the Estate.
At SLF Lawyers we have the experience, kowledge and skills to assist with all Italian and foreign Estate matters to make the experience as stress free as possible and to avoid hidden technical and legal catches.
Article written by Fabrizio Fiorino – Special Counsel | Italian Registered Lawyer | MARN 1795302
