It will be of great benefit to members to have a group administered by Charlotte who always gives sound advice concerning legal matters. We have had quite a few queries on this topic, both in the Community and in the old forum. Also, legal matters within the EU are fairly complicated as there is no uniformity and this particularly affects those amongst ourselves who own properties in different EU countries. I will be happy to join the group as soon as it is posted. Right now you get a notice stating that access is denied. It usually takes a couple of days to set up a group. So it will require a bit of patience...

 yes - sounds a good idea to me! 

Good idea Carlotte, would be happy to join.

A

This is the conept of "renvoi" where one country's laws, where there is a conflict, refer to another country's laws.

Italian law states that succession law (meaning to whom one can pass to their estate) is regulated by the nationality of the deceased. English law states that the law applicable to succession to real estate is the law of the country where the property is situated. Italian law refers back to the UK  etc.

So Italy could play ping pong with the UK. And thats just for starters - each European country has different rules.

This leads to confusion over whether an English resident in Italy may leave their home to only one of their children, or their next door neighbour, or whether they are obliged by the Italian CIvile Code to respect the "statutory shares" to which each close family member will be entitled. It is a subject which has been debated on the Italymag forum, and which is written about on the internet, but with lawyers often disagreeing in their interpretation.  I believe that the national law of the deceased should always apply regardless of the existence of property abroad.  

I would be interested in hearing from members who have experience of successions in other EU countries, eg France, Germany Spain?

Charlotte

As I am about to buy a house here and plan to stay for the rest of my life I am very interested in this topic for a new group. It sounds as though currently settling an estate could drag on indefinitely between countries to the utter frustration of the intended inheritors. Look forward to hearing more.

Liz

 this is far outside the scope of  general knowledge re selling properties here... and calls for a much more refined way of answering that question when asked ...

not wanting to get into personal details but there is seemingly a fair amount of people that make this move that are partners out of law...so to speak ...often with other families and i know we advice clients to speak to someone in the know... when a seperation is the case... not divorce... but its a legal minefield that we prefer to send clients with an out of the norm first marriage status with or without kids to at least email Charlotte... 

so more than happy to see this question up front and being discusses... like Liz said above... things unless clearly written could drag on for yonks and at a time when maybe you would not wish them to...

finally have had Charlotte attend various final acts and have seen legal discusions taking place during that process in order that couples, married or not, can buy the house in the name they want... because Italian notaries in general have no idea of the laws regarding non italians... another subject i know.. but maybe its a thing that should be sorted before you buy... maybe it would make it easier ...dont know

Charlotte.....I have valued your many posts over the last year or two that I have been 'around'...................and they have been most informative.............grazie.................

DEFINITELY want to join the group please.....................

S

Thank you, and I think this site is a very valuable source of information for people.

I think you need to sign up to the Group, if you have trouble then maybe I can invite you. 

I am going to post some background on the legal development in Europe as a public post. Then maybe members can debate the finer details of succession law in the group, when we start going into the concept of domicile and common law rules on trusts etc...

Very interesting Charlotte. 

Another difference I found out relates to rental laws.  In Italy, I understand if you are renting your property to a person who is elderly(or maybe there is no age limit)  you cannot force them to move out, even if they the ownership of the real estate changes.  In fact if they have dependants, the dependants may have a right to continue the lease.  Maybe you can explain this in more detail, it is very different than US law.

Thankyou

. 

Interesting point. Why don't we start a thread on this in the Property Law group?

I have some issues that I could do with running past you guys :

My Grandfather died 8 years ago, in fact it was 1992 when he intially wanted to gift the assets but the children couldn't agree, he was Siciian, although he died in the UK, he left a will, which divided his assets amongst his children,, and everyone in the end was reasonably satisfied with it all.  I have 2 uncles in Sicily, each live in a house which is currently registered in my grandfathers name but going to pass to them under the will, my mother and her sister both live in the UK, they get some land, which my grandfather used for his animals, but is now in quite a good position for building. There are some other plots that my uncles are to get along with the houses.

In terms of children, my mother has 2 children, and one of my uncles in Sicily has 3 children, the other uncle and my aunty are un-married and have no children.

I am a UK resident, and I can't understand why it has not been sorted out by now, I come from a background in accounting, it almost feels that some parts of my family are deliberately obstructing the process, I want to build on the section my mother is the get, once she transfers it to me, so that I can have a base in Sicily for my family for long holidays july/august, and potentially longer for myself once the children are older.

There is supposed to be a legal representative but from what I can gather they are not much use. How can I get this thing moving ? Doesn't the Italian government pressure the process ?

Hello Kenny, eight years is a very long time for a succession procedure, even in Italy. It would have delayed things possibly by a couple of years only having a will made in the UK, and having to translate it and deposit it here. As long as a deuncia di successione was made this can be used to transfer the legal title of the land and property into the heirs' names. Can you get hold of a copy of this? 

The will was an Italian will written in Sicily, at an italian solicitor, no legal business was ever conducted in UK, My grandfather only came to the UK late on in life, and never took up British citzenship, etc, he was always purely  Italian in nationality. In fact he only knew a couple of words in English.

There appears to be an issue with one section of land but still 8 years is a ridiculous amount of time, and from my perspective it seems like my relatives and/or the lawyer is obstructing the process. I see no real reason why it should take any more than 2 years maximum.

Who do you think could get it moving in the right way,as it really frustrating that I can't progress.

I saw a document showing the split of the assets back in 1992, and it detailed the split to each of the children. I believe my mother or aunty has a copy.

I think you wil have to go to Sicily, collect all the documentation, and instruct a lawyer there to represent you and your monther's interests. You will need to find out the full history of the "issue" with the land, who it involves, who is obstructing it and find out whether you can possibly request a legal division of the property. To do this may take you another 2 or 3 years but at least you will then be in control of the situation.

Thanks, I was starting to think that only significant intervention from me would get anything sorted.

Thanks Charlotte - will be joining!

This is a fascinating and confusing subject.  We are about to make a will to deal with our Italian property but our problem is that we are permanent residents of Australia and all our other assets are there however we are still British citizens.  Are we able to specify that Australian succession law should apply to our Italian house?  Who do we lodge such a will with in Italy?  Anyone's comments / ideas would be much appreciated.

Italian law states that the law of your nationality will govern your succession, UNLESS you have expressly stated in your will that you wish for the law of the country of your residence to apply. So you could choose for either Italian or Australian law to govern your succession.

You could make a will in the UK, in Australia or in Italy. If you are based in Australia and do not have plans to travel to Italy, where you could lodge a public will with a Notary, you should probably make the will in Australia. If you can see an Italian lawyer there you could draw up a bilingual will so that the interpretation is not left to a translation into Italian made after your death.

Charlotte

Thank you Charlotte, that's very helpful.  We intend to make the will in Australia, should we still lodge a translateed will when we are next in Italy?

Gerry

This all sounds a right legal nightmare. We are a couple with one partner being English and the other German. We tried making a will with a lawyer here over three years ago that would allow us to leave our property to each other, not to the surviving partner's family, as we are not married. Needless to say, 3 years on and we are still waiting to sign an actual document. As we, in the meantime had one child with dual citizenship and are expecting another child soon, the originial will seems pointless. Our lawyer back then told us that any off-spring would get the assests anyway. In case of a surviving partner, that person would only get habitation rights, but the house itself would get directly to the children. Any thoughts on that? Is a will still advisable or even necessary to ensure that succession laws of only one country, lets say the Italian or UK law would apply? Or should we try to transfer the Italian house directly into the name of our children to avoid all these problems in the first place

Thanks for any advice.

i'd like to join this group also please Charlotte, it brings home the need to have a will drawn up (which we haven't!) we've  bought a property with jacs  sister-in law and her partner , while we are married they are not , we have 3 children ( 1 from jacs previous marriage) they have 4 children, could get all very complicated if god forbid one of us were to pass away!

Liam

 I would challenge pretty much all of the above. (Italian succession law only applies to Italian nationals, "domiciled"). Under EU rules, the rules under "country of domicile" determine succession rights. So, domiciled in the UK, then UK rules take precedence. Domiciled in Italy, Italian rules take precedence. Domiciled in Germany, German rules take precedence. Domicile is not an easy concept to get to to grips with and does not depend on residence or any one factor. You can be resident in Italy for 50 years but still not domiciled there. For one thing to be domiciled in Italy you would have to renounce the nation of your birth, your parents (father's) birth and have an Italian passport and identity. "Ping pong" or flipping nations only really occurs because of differences in inheritance tax rates. Given that Italy has a double taxation treaty with most countries, taxation rates in "country of domicile" will ultimately apply unless no proceeds are remitted.

 I'd like to join too - it's one of those topics where the more you know and keep up to date about, the better it'll be when/if the information is needed.

Dear Capo Boi, thanks for joining in this debate. I don't agree with your views however.

There are no EU rules on succession at the moment, there is only a proposal for a Regulation not yet in force. Each country's own set of private international law rules determines the applicable law to succession.

Domicile is not always the prevailing factor. Also, the concept of domicile is different under the laws of each country.

You do not need to be an Italian citizen and have an Italian passport to be domiciled in Italy (according to the UK choice of domicile rules anyway).

Ping pong has nothing to do with inheritance tax. 

One enormous difference between UK and Italian succession laws (one based on common law principles the other on Roman law and the Napoleonic codes, both systems developing on separate lines over thousands of years) is that UK follows the principle of scission (that is it treats immoveable and moveable property differently, whereas Italian law favours a "unity of succession" that is the law of "one country" being chosen to govern a person's estate, whereever their assets are. This latter principle is also contained in the new proposed Regulation.

Charlotte

 I wonder if anyone can help? I have a good friend who purchased a house in Italy which has now been seized by the authoroties because it was built without the correct planning permissions(My friend however has been allowed to stay in the house because he has no alternative accomidation)The case has been put into legal and is due to go to court in the near future and it appears the builder will definetly lose i.e he has not got a leg to stand on. My question, is the estate agent who sold the property also libel? (A very well known national chaine)

Hello Charlotte,

I've reread my post above and think I worded things very badly. I misread your original comments and  would like to apologise to you. I agree with you that EU rules on succesion are only in draft format at the moment. You state "Each country's own set of private international law rules determine the applicable law to succession" I completlely agree with you here and I think that was the point I was trying to put across (very badly as it happens). I was trying to say that the concept of "domicile" is difficult to get to grips with but probably is the overriding factor in determing which country's laws should apply. ( I agree you don't need an Italian passport to change your domicile from the UK, for example, to Italy but it is one factor that could help). 

As regards "ping pong" I think I again misunderstood you there. I thought that you were talking about flipping countries to minimise inheritance tax rates. I was trying to say that if this was the case, again the country of domicile rules' would apply.

Again apologies to you Charlotte and my very best wishes. Your expertise is much appreciated.

 Unfortunately this issue is often circular and the sooner the harmonising regulation comes into force the better. I'm not sure how many people this applies to but the position in Ireland (being a common law country) is as Charlotte has outlined. As I live and am domiciled in Ireland (and as I haven't said anything about what jurisdiction is to apply in my death) Italian law would state that Irish law should apply to my assets on my death. However Irish law would then state that as regards immovable property (eg my holiday apartment in Italy) then the law of the country where the property is situate would apply i.e. Italian Law! In this case would it help if I stated in my will that I want Irish law to apply to all of my assets? I presume it would (presuming that is what I want to happen)

Thanks Charlotte for starting this important and informative thread.

Postmac - you are right - this is a typical ping pong situation and there is no definitive answer. But my view, which is shared with many other lawyers and Notaries in Italy, is that if your will expressly states the law that should be applicable to your succession, this can be put into effect by your heirs.

Therefore Italian law will respect your wishes that substantial Irish law alone should apply to your worldwide estate, and not get involved in any discussion of immoveable and moveable property.

When the new Regulation comes in, the default law will be the law of your habutiual residence, no longer nationality. So it will still be important to expressly state the law you wish to apply to your succession.

Charlotte

Charlotte,

Thank you as always for your enlightened input.

Would you have any idea when the new Regulation is likely to come into force? - I realise this may well be a "how long is a piece of string" question 8-))

Also, if someone expressly states the law they wish to apply now (pre-regulation) will their wishes be followed post-regulation without any need to re-write a will or take any further action?

Hi All,

Can anyone advise how to obtain a copy (if this is possible)of a ministry of finance form Model No 4 or a copy of a notarised distribution of probate.

I am trying to find out the estate of my late Italian brother in law - I know the date of death and the commune and that he was survived by his wife (my sister) and his only child. I am not sure if he actually left a will.

My late father who lived in Ireland left a will to be distributed according to the personal financial circumstances of each of his children and their families and we had to all provide the necessary documentation with the exception of my sister who lives in Italy.  For 7 years she has always maintained her left husband left nothing but debts.  After an Irish court order to disclose, she has now provided copies of Unico tax declarations - five of them to cover a period of 3 years after her husbands death showing fairly large sums of money from shares and bank accounts but still will not disclose the full amount of her late husbands estate, thus my appeal for help.  If we wait for her to finally produce this paperwork, we will all be dead or the legal fees with outstrip our late fathers estate!

Any advice or suggestions would be so greatly appreciated