In Italian law, some family members are entitled, even against the will, to receive a fixed portion of the property of the deceased. This law is referred to as the necessary succession. The law reserves the following persons a portion of the heritage: companies
The spouse is reserved for half the property, except if the deceased leaves children. Article 540 of the Italian Civil Code reserves the right of the spouse to occupy and use the family home even if other heirs exist;
If only one child, legitimate or natural, is left by a parent, half the estate is reserved. If more than one child is left, the children will be divided into equal parts and receive two thirds of the estate;
If the deceased only leaves legitimate ancestors, then they are entitled to 1/3 of the estate.
If the deceased leaves a spouse with only one child, both have the right to receive one third of the estate.
If the deceased leaves a wife with more than one child, the wife earns one fourth of the estate and all the children receive half.
If the deceased leaves only legitimate ascenders and a wife, one quarter of the estate is paid to ascenders and one half to their wife.
In the absence of a will, legitimate succession occurs.
Italian law determines which family members of the deceased are entitled, in the absence of a will or if the will is invalid, to success by legitimate succession. Forced heirs are the primary persons involved in legitimate succession (the spouse, the legitimate and natural children, and the ascendants). The spouse, legal and natural descendants, ascendants, collateral and other relatives are assigned legitimate succession, under the following rules:
The people called mainly to be heritage are the legitimate and natural children and their descendants, all of whom are equally.
If the deceased leaves a married wife and children, only one child inherits half of the estate; if more than one child, then one third is inherited by the children.
If the deceased doesn't leave children, then the spouse inherits the property with two-thirds of his parents, ascendants, brothers and sisters.
The spouse inherits all his property without legitimate or natural children, parents or descendants, brothers and sisters.
Without the marriage, legitimate and natural children, parents or ancestors, brothers and sisters, the person who succeeds the deceased on this property shall belong to the family from the first to the sixth grades.
In the absence of any successful person, the inheritance shall be attributed to the State.
Unless Italian law applies, the law shall apply to the country where the tester dies (lex successionis - Article 46 Law No. 218/1995). The family relationships governed by the national law that applies determine which family members have the right to succeed and their prevalence.
It is recommended for a stranger to make a will.
In order to avoid long hazardous proceedings for inheritors and family members, a foreigner with assets in Italy is advised to make a will. Italian law recognizes three types of testament:
A private act is a holograph. It must be written by hand, dated and personally signed by the tester. It can be prepared with any type of sheet at any time without any cost. It may be kept by the testator but it is more convenient for the testator to submit the will for publication to a notary, so that destruction is avoided before or after death;
A holographic secret will is not necessarily drawn up. It must be sent to a notary in the presence of two witnesses by means of complex legal formalities;
In the presence of two witnesses, a public will must be delivered to a notary and signed by a testator. The advantage of a public will is that the notary collects the testament in the presence of witnesses and provides immediate conformity with Italian law in accordance with the testator's wishes.
Article 48 of Law 218/95 provides that the testament must be considered valid under the legislation of the State where the testament was made or where at the time of making the testament the testator was a citizen. Alternatively, this will must be regarded as valid under the law of the State in which the deceased was domiciled or resident or in which he was present at death.
In the light of the foregoing, it is advisable and simple to draw up a holographic will of a foreigner not living in Italy, to which the Italian system assigns full efficacy as much as the public will by an Italian notary; the holograph shall however meet the formal requirements of the Italian civil code. The holograph must be delivered to a trustworthy person, preferably in a sealed envelope, who will deliver him to an Italian notary after his death for all the necessary fulfillments (publication, registration, transcription in the competent Real Estate Public Register, payment of inheritance tax). Since it is an especially sensitive document the best thing to do is to deliver the testament directly to an Italian public officer, who receives the deposit containing the full data of the testator.
In accordance with Law 90/387, on the basis of a uniform law on the form of an international will, Italy entered into the Washington Convention of 26 October 1973. As consequence of this, if the international will (of an Italian and a foreigner) is manuscribed, even by third parties, the nature of the goods, the object of an inheritance, the domicile or residence of a testator, or the language used to write a will shall, regardless of the place in which it is drawn up, be considered formally valid.