If you die as a resident in Italy, Italian succession law will dictate how your worldwide movable assets (i.e. bank accounts, shareholdings, personal items etc) and Italian immovable assets (i.e. a property) will pass on your death.
If you are resident in another country, Italian law will only dictate how your Italian immovable assets pass on your death.
Whereas, English law, which is based on Common Law, allows you to leave your assets to whomever you choose, Italian law, which is based on Civil Law, does not give you complete testamentary freedom.
Even if you have a Will dealing with the distribution of your Italian assets, Italian law says you are not allowed to disinherit certain family members, primarily children. If your Will (English or Italian) tries to avoid Italian law, the law will override those provisions in your Will and your wishes will not be carried out.
What is an executor?
Having to deal with the administration of an estate after you have lost a relative can be challenging. It can become even more challenging when there is a foreign element.
Ownership of Italian assets vest directly in the beneficiaries so administration of an estate is usually entrusted to the decedent’s heirs, who cooperate with each other regarding the distribution of assets in accordance with the testator’s Will.
However, this is not always the case. Sometimes, the testator fears that issues or disagreements may arise among beneficiaries or knows that, among the heirs, one or more may create problems for one or more of the other heirs.
Where the testator believes this might occur, the testator has the option to appoint one or more executors. An appointed executor is entrusted with the responsibility of ensuring a person’s last wishes are granted as expressed in the decedent’s Will (article 700 of the Italian Civil Code).
The executor of a Will may also be an heir or a legatee. If more than one executor is appointed, they have to act jointly. Should the appointed executor not wish or take on the appointment, the testator may also appoint replacement executors. Any individual appointed by the testator as executor of a Will may choose either to accept or renounce the appointment.
What are the duties of an executor?
Besides ensuring that the deceased’s last wishes expressed in the Will are exactly taken care of, the Executor of a Will also normally manage all the assets included in the estate by taking possession of them.
The executor must fulfil all legal obligations, including filing the statement of succession for the deceased at the competent Inland Revenue Office, within twelve months of the testator’s death.
The executor responsible for making sure that any debts and creditors that the deceased had are paid off and take care of testamentary duties, such as provisions concerning the funeral.
To carry out tasks, the executor, if necessary, may dispose of some of the assets included in the decedent’s estate and generally take action for any out of the ordinary administration of the estate, subject to obtaining authorisation from the court.
Once the estate administration is complete, the executor is responsible for rendering a full account of the administration to the heirs.
When to appoint an executor?
Appointing an executor is appropriate if there are complex personal or inheritance situations. The most common scenarios would involve heirs under the age of 18 years old or incapacitated heirs, or where there are heirs whom the testator does not trust.
When dealing with a Will and inheritance in Italy it is essential to instruct an independent English speaking lawyer with good knowledge of both Italian and cross-border inheritance law. This can be invaluable in helping you make the best decisions for your estate and beneficiaries.
The time and money you spend on prudent estate planning with a suitably qualified lawyer can save a great deal of money and months of hassle. Your lawyer will be able to provide advice and reassurance that the legalities have been dealt with on your behalf to put you and your beneficiaries in the best possible position.
You should protect yourself by instructing a lawyer as soon as possible and before any formal steps have been taken in respect of a Will or in the administration of an estate with assets in Italy. This allows your lawyer to advise you properly on all aspects of your situation and to ensure all the appropriate steps are taken.