What are the national rules in case of intestate succession (no will has been set up)?
In the Italian legal system laws concerning succession on death are supported by two main principles:
a) the freedom to make a will;
b) transmission of richness to family.
Consequently our system provides two different ways to devolve deceased's estate:
- drafting a will;
- by law prescription.
Law prescription intervenes only if the deceased has left no will or the will does not provide for the whole deceased’s estate or the will is invalid, because lacks of essential contents. In these cases deceased’s estate shall be distributed among family members within the sixth degree. The law provides us with the list of relatives called to inherit, and the order in which they are called in, in our Civil Code (Articles from 566 to 586) If no relatives within the sixth degree exist, the estate goes to the State.
This means that in our legal system family relationships automatically represent a title to succeed, even if the deceased does not express such will.
In case of intestate succession, family members are called as heirs in the following order:
a) entitlement of the spouse:
- the spouse alone inherits the whole estate if there are no other relatives – art. 583 Civil Code;
- the spouse inherits half of the estate if there is one child, 1/3 of the inheritance if there is more than one child – art. 581 Civil Code;
- the spouse is entitled to 2/3 of the estate if there are parents or siblings of the deceased; the remaining third goes to any living siblings or parents – art. 582 Civil Code;
b) entitlement of other relatives:
- if there is no spouse, the children inherit the whole deceased’s estate. If there is more than one child, the estate is divided between all the children in equal parts. No distinction is made between legitimate, natural and adopted children- art. 566 - 567 Civil Code;
- parents (if both are living, succeed in equal parts) – art. 568 Civil Code;
- grandparents (half of the estate is distributed among the mother’s family, and half among the father’s family, if all living) – art. 569 Civil Code;
- siblings (if more than one, they succeed in equal parts) – art. 570 Civil Code;
- if the deceased dies leaving parents, sibilings and grandparents, they all have a right to a part of the estate - art. 571 Civil Code;
- if the deceased leaves no progeny, parents, forefathers, or siblings the estate is left to the closest relative within the sixth degree – art. 572 Civil Code;
- if no relatives within the sixth degree are found, the government inherits the estate – art. 586 Civil Code.
What are the national forced heirship rules, if any existing?
There are a series of rules relating forced heir ship, in case of testamentary succession.
In this case, the will cannot affect the rights of those entitled by law to a share of the deceased’s estate who are the children, the spouse and the parents of the deceased, forced heirs.
- if a parent leaves only one child, he/ she is entitled not less than half of the estate;
- if there are more children, one third of the estate is equally distributed among them;
- the spouse alone is entitled to half of the estate;
- if the deceased’s parents have survived together with the spouse, the former ones receive one forth while the latter is entitled to half of the estate;
- if the spouse and one child are present, each one is entitled to one third;
- if there are more children and the spouse, the children are entitled to half and the spouse to one forth of the estate.
What are the national formal requirements when setting up a will (holographic will, will confirmed by witnesses, will confirmed by a notary public)?
We can find a definition of will in our legal system in art. 587 of our Civil Code. It is defined as a revocable act with which a person, while living, disposes of his/her assets, deciding what to do with them for the time in which he/she will not be alive anymore.
The content of a will, consequently, mostly regards the deceased’s richness, though a will can also contain also or only non patrimonial dispositions.
A will can be, in our legal system:
- a holograph will: is disciplined by art. 602 of our Civil Code. A holograph will needs to be entirely handwritten by the testator, by him/her only, and then it needs to be dated and signed by him/her only.
- a public will: is disciplined by art. 603 of our Civil Code. The public will is written by a notary, who faithfully reproduces the testator’s dispositions in front of the testator himself and two witnesses. The will is then signed by all those who are present (testator, notary, witnesses), and is then kept in the notary’s archive.
- a secret will: is disciplined by art. 604 of our Civil Code, and is also called a mixed will. This type of will can be either be handwritten by the testator, or it can be reproduced in any other way, it can even be written by a third person. This act is then delivered in a closed envelope by the testator himself to a notary, in front of two witnesses. The notary dates the envelope, writes on it what happened in front of him, and then, the testator, the witnesses and the notary sign it.
Whoever decides to write a will can decide in which form to do so, depending on his/her needs and priorities.
Is inheritance and/or gift tax in place or abolished?
In the Italian legal system inheritance/donation tax is currently in place and is regulated by the law n. 346/1990.
If inheritance tax and/or gift tax is in place please specify the percentages of tax respectively the calculation of tax!
In our legal system inheritance/donation tax rates depends on who the heir/beneficiary is.
Spouse and direct descendants (children and grandchildren) are obligated to pay a 4% tax rate on assets that exceed Euro 1.000.000,00.
Siblings and other relatives within the fourth degree are obligated to pay a 6% tax rate on assets exceeding Euro 100.000,00.- .
Every else, different from those above mentioned are obligated to pay an 8% tax rate for any asset they inherit.
This information was compiled by FINPRO Commercialisti & Avvocati Associati.