A will is a valuable legal document in virtually all countries, and Italy is no exception. Adults are encouraged to maintain updated wills as a part of the estate planning process, ensuring assets are handled as an individual desires rather than allowing estates to be divided as stipulated by law under Successione Legittima, or Intestate Succession.

However, in Italy, even wills are subject to government interference. Under Successione Necessaria, the assets included in an individual's estate must be distributed in part to particular heirs by law. This concept can be particularly confusing to residents or citizens of other nations, like the United States, that do not impose significant restrictions as to how and to whom assets can be passed.

 

Defining Successione Necessaria

Successione Necessaria refers to legally forced heirship, by which certain family members are due a mandatory minimum statutory share of an estate, regardless of the interests of the deceased. These succession laws dictate that part of an individual's assets must be held in reserve for these so-called forced heirs. Known as a reserved quota, this amount varies based on the living relatives of the deceased. Numerous categories of family members can be considered forced heirs, including:

  • Spouses
  • Children, including adopted children
  • Ascendents, like parents or grandparents

Under Successione Legittima, siblings, or their children if siblings are deceased, can be included in the chain of succession. However, under Successione Necessaria, siblings have no rights to a minimum statutory portion of an estate.

Once the reserved quota is addressed, the available quota, or the amount remaining, can be used as the decedent sees fit. Note that the portion of the estate that must be reserved for forced heirs is a minimum, not a maximum; if a decedent must reserve a portion of his estate for his spouse and child, the remaining available estate may also be bequeathed to his spouse and child.

While these laws are often entirely acceptable – most individuals intend to pass their assets on to family members, regardless of the legal obligation to do so – they can be problematic at times. For example, even if a will is written to exclude a child from receiving assets, the law supersedes these wishes and requires a portion of the estate to go to the child.

The Rules of Forced Heirship

The ways in which an estate must be divided depend on a decedent's marital status, offspring, and living ascendents as follows:

Living Heirs

Reserved Quota

Available Quota

A spouse

One half to the spouse

One half

A spouse and one child

One third to the spouse, one third to the child

One third

A spouse and two or more children

One quarter to the spouse, one half allocated between children

One quarter

A spouse and ascendents

One half to the spouse, one quarter allocated among ascendants

One quarter

A spouse, ascendents, and siblings

One half to the spouse, one quarter allocated among ascendants, no mandatory quota for siblings

One quarter

A spouse and siblings

One half to the spouse, no mandatory quota for siblings

One half

No spouse and one child

One half to the child

One half

No spouse and two or more children

Two thirds allocated between children

One third

No spouse and ascendants

One third allocated among ascendants

Two Thirds

No spouse, ascendants, and siblings

One third allocated among ascendants, no mandatory quota for siblings

Two thirds

No spouse and siblings

No mandatory quota for siblings

Entire estate

Exceptions to Successione Necessaria

While most wills in Italy are subject to Italian succession laws, wills drafted by nationals of other countries may be exempt due to Italy's adoption of a concept known as unity of succession. This permits electio legisa codicil that allows a will to be administrated under the laws of an individual's country of citizenship rather than under Italian law. If, for example, a UK citizen owns property in Italy and writes a will that handles the distribution of this property, he can add this election into his will in order to utilize UK succession laws, not Italian succession laws.

Writing a will in accordance with Italian law can be very complicated and almost always necessitates the oversight of an Italian lawyer. If you would like to draft a will to protect your Italian assets, are eligible to receive assets under Italian succession laws, or have questions about succession in Italy, we are happy to help.

 

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