Under Italian law of succession a person may dispose of his property after his death by Will (Testamento) or alternatively, let the law to deal with this matter.
Where a person dies without a valid Will, (Intestata) Italian law states who will inherit and how much (Successione legittima). Where a person dies leaving a valid Will the law will first ascertain the validity of such Will, secondly provide a set of formalities to be complied with and, in some cases, taxes to be paid. Thirdly they will ensure that the Will is implemented and the relevant assets are legally transferred to the beneficiaries entitled. (Eredi/legatari).
In implementing the Will of an Italian national, Italian law will also ensure that the immediate members of the Deceased family are not deprived of their minimum statutory share of the Estate (Quota di legittima), which is due to them under the general law (see box). Where the Will infringes such minimum statutory shares, the Will may not be implemented and the heirs who have been deprived or are affected will have redress under the law and may apply to the Italian Courts.
Under Italian law there are three different ways of making a valid Will:
a) Handwritten Will (Testamento Olografo) – This is a document personally handwritten by the testator and dated and signed. There is no need for witnesses and there is no attestation clause. It can be a very simple letter or document which can be in any language.
b) Formal Will (Testamento Pubblico) – This is a document drafted by an Italian notary upon the instructions of the Testator, read out by the Notary to ensure that it complies with the wishes of the Testator and signed by the testator in the presence of witnesses. The Will is then lodged with the Italian notary. This is a fairly formal document. While it provides reassurance that the Will will not be lost or disregarded, it involves a cost (notarial fees), and its contents are immediately disclosed to third parties.
c) Secret Will (Testamento Segreto) – This is a Will written by the Testator and placed in a sealed envelope which is then delivered to an Italian Notary. The notarial fees are reduced, the contents of the Will shall remain secret until after the death of the Testator when the sealed envelope will be opened. In some cases, foreign Wills will be recognised and enforced under Italian law. However this is a complex matter. Where a person owning property in Italy wishes to make a foreign Will (say, wishes to make a Will in accordance with English law), it is recommended that a Will is also drawn up in each country that has immovable assets to deal with them.
One of the problems of Wills under Italian law is that the law provides that the members of the immediate family of the Testator are entitled to minimum statutory shares (Successione necessaria) in his Estate. So, it is not simply a question of the formalities of making the Will but is also a question of ensuring that the minimum shares granted by law to the various beneficiaries are complied with. This is a substantive Italian legal matter.
