No Access

Inheritance Taxes Pursuant to Italian Tax Law

Posted on

Who Pays Inheritance Taxes in Italy? 

The primary consideration of Italian tax law is registered residence (1). If the deceased was a resident of Italy, citizen or not, the heirs will have to pay succession taxes to the Italian state.

Citizenship does not matter. Even if the deceased was a foreign citizen, but had residency in Italy, the heirs will have to pay Italian inheritance taxes to the tax authorities for the wealth enrichment that this event (the death of the deceased) contributes to their respective assets.

The location of assets, meanwhile, also counts, because if some assets of the deceased are in Italy, the heirs will have to deal with the Italian tax authorities. Again, citizenship does not matter here. The rule applies to both an Italian who resides broad, as well as to a foreigner who only has an asset located in Italy.

Therefore, when an American citizen who has residence in Italy dies, his or her heirs will have to comply with Italian tax authorities for all assets inherited, both in Italy and abroad. The same is true if the deceased had dual citizenship (Italian-American).

However, if the American citizen did not have Italian residence, but had assets present in Italy, then the heirs will have to comply with Italian tax authorities only for those assets. The same rule applies if the deceased had dual citizenship, but was not resident in Italy.

Bearing all this in mind, it is clear that residence is the main factor for tax authorities, while location of assets also comes into play. There are three different rates dependent on citizenship, asset location and residence.

Citizenship  Asset Location Residence Inheritance Tax
Italian, foreigner or dual citizen in Italy (and abroad)  Italy  Heirs pay taxes on all assets, in Italy and abroad
US Heirs pay taxes only on assets located in Italy

The Italian Revenue Agency (Agenzia delle Entrate) (2) investigates if the party in question was formally registered in a particular municipality, and consequently obliges his or her heirs to pay taxes on the assets inherited, irrespective of domiciles acquired in other countries or a change of permanent residence where the deceased failed to formally notify the municipality of last residence.

To avoid double taxation (by Italy and another foreign state) on the same assets, Italian tax law allows that taxes already paid to a foreign state can be deducted from the amount that must be paid in Italy in relation to the same assets.

An agreement was signed between the US and Italy in 1955 and later ratified by both countries (3), which avoids double inheritance taxation on citizens of the two countries. 

The agreement uses the criterion of citizenship or residence, which therefore must also comply with new inheritance tax criteria adopted in 1990. As such, if an American heir pays inheritance taxes to the Italian state on assets inherited from an Italian-American citizen, who resided in the US but had assets in Italy, then he or she can use the tax credit provided by the US, so as not to pay the same taxes twice. 

It is also important to consider that In Italy taxes on inheritance fall into two main categories: estate tax (imposta di successione) and property transfer tax (imposta catastale). The imposta di successione covers both property and non-property assets and varies depending on the relationship between testator and beneficiary. Children and spouses, for example, are always taxed 3% for the entirety of the estate. However, if the estate is worth more than a million euros, the 3% overall tax is added to a tax of 4% on all assets beyond the million euro mark.

The imposta catastaleis imposed when real estate located in Italy is transferred to an heir. The rate of tax is 3% of the property value on record, or valore catastale, which is typically 30 to 40 percent lower than the market value. If the property is used as the primary residence, the tax has a lower fixed rate of 200 euros. For most foreign clients, however, this is not an option as inherited properties are not generally utilized as primary residences.

Read More:  

(1) Law Decree nr. 346 of 1990
(2) Italian Revenue Agency: Inheritance Tax Declaration
(3) Italy – Tax Treaty Documents in the IRS website

Heirs and deceased’s bank accounts in Italy

Posted on

Heirs and deceased’s bank accounts in Italy

During the course of succession, heirs assume not only the assets of the deceased, but also liabilities. These liabilities may include relationships with banking or credit institutions, making the heir responsible for all rights and duties due these institutions. 

The heir nevertheless has a right to access information pertaining to the deceased’s banking or credit history. Article 119 of the Italian T.U.B. (Consolidated Banking Act– Legislative Decree No. 385 of 1 September 1993) states that “the client, he who succeeds (the testator) in any way and who takes over the administration of his assets has the right to obtain, at his own expense, within a reasonable deadline, and in any case no later than ninety days, a copy of the documentation relating to individual transactions carried out over the last ten years. Only the costs of producing such documentation may be charged to the client.” The Italian Court of Cassation has repeatedly ruled in favor of heirs seeking account information and against banks rejecting those requests (Cassation Section I No. 12093 of 27/9/2001; Court of Cassation Section I No. 11004 of 12/5/2006), underlining that the legislation must be interpreted on the basis of the principle of good faith in the execution of the contract and therefore the client has the right to obtain all the documentation of interest, respecting only the ten-year time limit. 

In addition, access to personal information must be free and guaranteed in an intelligible form. All documents must therefore be delivered to the applicant without provision of any consideration or reimbursement of expenses. To this end, the Italian guarantor of personal data protection in Italy weighed in with decision No. 372 of 11/10/2011, in which he stressed that an heir (in this case the son of the deceased) may exercise the right of access to personal data of the deceased from banking institutions, stating: “the right to access personal data […] must be guaranteed free of charge and cannot be conditioned.”

Read more articles on our website:

If you need any help, feel free to contact us at:

+1 (877) 896-3047 (U.S. & Can)

+3906-9294-6085 (Global)

inquiry@mylawyerinitaly.com

Italian Citizens Abroad and the National Health Service

Posted on

Italian National Health Service for Italian Citizens living abroad

Italian citizens living abroad must register themselves at the local Italian consulate in the Anagrafe degli Italiani Residenti all’Estero- AIRE (register of  Italian citizens living abroad). This registration will determine removal from the Anagrafe della Popolazione Residente -APR (register of the city or town where the citizen was residing in Italy) and also automatic removal from the Italian National Health Service (Servizio Sanitario Nazionale), as it is assumed these citizens will be enrolled in the healthcare programs provided by their new country of residence.

However, when an Italian citizen living abroad returns to Italy for a visit, he or she is entitled to services provided by the public healthcare facilities in the location of the visit, as well as hospital-based urgent care centers (the urgent care limitation seeks to discourage those who would arrange trips to Italy in order to obtain routine hospital services).

Only in cases where a citizen resides in a country that shares reciprocal healthcare agreements with Italy can the citizen utilize the healthcare services of one country and have those services covered by the Italian National Health Service. Italy and the United States, for example, have no such reciprocal agreement.

Therefore, a US citizen who obtains Italian dual citizenship, but continues to reside in the United States, is not entitled to Italian coverage of healthcare services rendered in the US. Dual citizens visiting Italy, however, are entitled to urgent care from local healthcare services (for a maximum period of 90 days).

Read more articles on our website:

If you need any help, feel free to contact us at:

+1 (877) 896-3047 (U.S. & Can)

+3906-9294-6085 (Global)

inquiry@mylawyerinitaly.com

A New Approach to 1948 Cases by the Court of Rome

Posted on

NOTE: from June 22, 2022, all proceedings regarding Dual Citizenship by Descent no longer pass through the Court of Rome but must be submitted to the District Court of the Italian town where the ancestors were born. Hence, any reference to the Court of Rome must be systematically read as to the District Courts of Italy.

This post was updated in January 2020 as a result of decisions handed down by the Rome Court of Appeal, which have consequently made this post outdated. Please read the new post here…

Even before the summer of 2019, it had been rumored that the Court of Rome would change its approach to cases involving citizenship through the maternal line in which the so-called “1948 Rule” applies. 

For almost a decade cases involving this rule were nearly guaranteed to have a favorable result. When in July 2019 the Court of Rome ruled against one of these cases, thus not granting citizenship to the plaintiff, a potentially dramatic legal shift had occurred. To give more clarity to the issue, the Court of Rome recently published an ordinance outlining the new approach to 1948 maternal line cases.

Briefly stated, the 1948 Rule, as it has been historically applied, enables children born to an Italian mother prior to 1948 to claim Italian dual citizenship before the Court of Rome. Before the rule came into effect those claiming Italian citizenship jure sanguinis could only do so through the male line of ancestry. Due to its clear-cut nature, the vast majority of the cases have been won. That is why any legal shift in this area is seen as significant.

It should be noted that the new approach only concerns cases in which an Italian ancestor became a naturalized citizen of another country (the United States in the case of said ordinance) and had done so before their child (born in the US as well) reached the age of 21. In such cases, the child also loses their Italian citizenship.

In all other cases, like those in which an Italian parent did not become naturalized elsewhere or did so only when the child was already 21 years old, lineage passes from ancestor to descendant without hindrance. Like most 1948 cases, this scenario would result in the granting of citizenship by the court.

While the Court of Rome did seem to uphold the principle formulated by the Italian Supreme Court of Cassation in 2011 (i.e. the minor’s loss of citizenship), the door was left ever-so-slightly open for a potential restoration of citizenship. If this happened, it would only involve cases where citizenship was transmitted through a female ancestor and not a male one. In other words, because a case involving the maternal line would fall into the category of “1948 Rule”, it could be heard by the court, thus making it possible to reclaim citizenship.

However, if a minor loses citizenship due to naturalization of the mother (again, paternal line cases are not argued before the court), the conditions requested by the judge for restoration of citizenship are very difficult to achieve. The individual in this case, upon turning 21, must be in Italy, serving in the Italian military, or be living in a country other than one in which they were naturalized. Article 9 of law no. 555 of 1912 lists these conditions to claim Italian citizenship.

This new approach by the Court of Rome will certainly affect all cases of bloodline citizenship, no matter if they are brought before the judge as a consequence of a consulate rejection, a delay over two years in deciding an application, or a 1948 cases. Consequently, this will lead to numerous appeals. In the event that the Rome Court of Appeals agrees with this approach, there will be many cases brought to the Court of Cassation.

This new decision on Italian citizenship by bloodline may affect the way judicial citizenship decisions in Italy are dealt with in the future. In any event, bringing your case before the Court of Rome is still one of the fastest and surest ways to obtain citizenship. Even if this approach is adopted, the majority of cases that go before the court would fall outside of these new provisions. 

If you are experiencing serious delays in scheduling, lengthy wait times, or are attempting to apply for Italian citizenship through the maternal line of your family, speak to us today about how to proceed with your case.

Italian citizenship law is never easy to traverse alone. Let My Lawyer In Italy help you on your way to Italian citizenship.

Read more articles on our website:

– THE 1948 RULE: CLAIMING YOUR CITIZENSHIP
– The Minor Case: which Italian Dual Citizenship petitions are getting rejected?

If you need any help, feel free to contact us at:

+1 (877) 896-3047 (U.S. & Can)

+3906-9294-6085 (Global)

inquiry@mylawyerinitaly.com

American Lawyers vs. Avvocati Italiani

Posted on

American Attorneys, Avvocati Italiani and differences between them

There are perhaps more similarities than differences when comparing American and Italian lawyers, but there are key points of departure nevertheless. Before jumping into what those are, let us pause to consider the terminology used when referring to legal practitioners in the two countries.

In the United States attorneys-at-law, or lawyers, are legally qualified to prosecute or defend actions in a court of law on the retainer of clients. Unlike other common law jurisdictions, the US legal system makes no distinction between lawyers who plead in court and those who do not. To practice law in the US, admission to the bar in a particular state or territorial jurisdiction is required.

While many lawyers in the US limit their activities to specialized areas of practice, for the most part distinctions between types of lawyers are not formalized. In fact, some states forbid or discourage these types of distinctions unless the lawyer has been certified in a specialized area by the state bar.

An avvocato Italiano is generally translated as Italian lawyer (more generally) or Italian attorney (using the American parlance). A qualified Italian attorney handles legal proceedings in any type of court (civil, criminal, family, labor, tax, etc.). Like their American counterparts, lawyers in Italy must pass the bar exam, known as the Esame di Stato, in order to practice law.

In addition to arguing on behalf of clients in court, Italian lawyers may also may also act as representation, if necessary in place of the client, on a range of legal matters such as contract signing, submission of affidavits or drafting of documents.

Some differences between the legal profession in Italy and that of the United States can be observed, however, when looking at training, jurisdiction and even the formation of law firms. 

Before taking the bar exam in Italy, it is customary to train for at least 18 months at a qualified law firm. The trainee is entered into the Register of Trainee-Lawyers and works under the supervision of certified lawyer (who themselves have no less than five years of experience). These types of training prerequisites are not the norm for those seeking to take the American bar exam.

Another distinction involves jurisdiction. American attorneys are qualified to practice in the particular state or territory where they have taken the bar. They generally don’t practice outside those jurisdictions, although some states do have reciprocal agreements allowing attorneys to practice in each others state without sitting for another bar exam. 

Conversely, once an Italian lawyer has passed the bar exam in Italy they are certified to practice anywhere in the country. As previously mentioned, Italian lawyers can also conduct proceedings in any type of court. While there are certainly different types of attorneys in Italy (with different areas of expertise), once an attorney is licenced to practice law, they can argue any case they choose and anywhere that is required (within national borders).

Finally, there is the matter of law firms themselves. An Italian law firm must have at least one Italian attorney on staff and may also have multiple Italian lawyers. They are also normally run as unlimited liability partnerships. American law firms, on the other hand, are quite often limited liability companies (LLC).

If you require any type of legal assistance in Italy, find out how qualified Italian attorneys can move your case forward. My Lawyer in Italy provides a range of services to meet all your legal needs and has a team of dedicated, English-speaking lawyers ready to represent you in Italy. Call us today for your free consultation.

If you need any help, feel free to contact us at:

+1 (877) 896-3047 (U.S. & Can)

+3906-9294-6085 (Global)

inquiry@mylawyerinitaly.com

Italian Dual Citizenship Benefits

Posted on

NOTE: from June 22, 2022, all proceedings regarding Dual Citizenship by Descent no longer pass through the Court of Rome but must be submitted to the District Court of the Italian town where the ancestors were born. Hence, any reference to the Court of Rome must be systematically read as to the District Courts of Italy.

Italian Dual Citizenship brings with it a variety of benefits, which include access to healthcare, education, and social security. Enrollment in these programs requires establishing residency in Italy (moving your residency back to the US would result in loss of benefits).

The most immediate and arguably essential benefit Italian citizenship provides is that of healthcare.

Once residency is established, your dual citizenship entitles you to enroll in Italy’s national health system (Servizio Sanitario Nazionale), enabling you to utilize healthcare for urgent, acute or chronic conditions (though some co-pays may be required depending on your income). In addition, Italian citizens (residing in Italy) have access to public healthcare in other EU countries.

Given the skyrocketing cost of university tuition in countries like the United States, access to higher education in Italy is seen as a tremendous benefit. When compared to other countries, Italian universities have substantially lower tuition rates, while at the same time being among the most highly-ranked in Europe. As well as being eligible for scholastic scholarships, Italian citizens (residing in Italy) are entitled to study at any EU university under the same conditions as nationals. Looking beyond higher education, Italians residing in Italy have full access to primary and secondary schools at no cost.

Social security is a more mixed picture as pensions benefits generally go to those living and working in Italy for at least five years. On the upside, though, Italy has “totalization agreements” in place with a number of countries, including the United States, with the aim of coordinating social security coverage and benefit provisions for those living and working in more than one country.

Additional Italian citizenship benefits are disability insurance, maternity leave of up to 20 weeks, and the “citizen’s income” (2019), a basic income initiative designed to help low-income Italians. Long-term care for elderly and disabled people in Italy encompasses outpatient treatment, home services, and assisted living facilities.

If you are a US citizen with an Italian ancestry wishing to become a resident of Italy, consider to apply for dual citizenship. Contact us for more information.

Read more articles on our website:

– The Minor Case: which Italian Dual Citizenship petitions are getting rejected?

If you need any help, feel free to contact us at:

+1 (877) 896-3047 (U.S. & Can)

+3906-9294-6085 (Global)

inquiry@mylawyerinitaly.com

Italian dual Citizenship and Last Name Issues

Posted on

How to keep last name if you become an Italian dual citizen.

Changing a surname in Italy has long been a difficult process, with the default position being that one’s surname at birth is fixed and unchangeable. Furthermore, according to Italian law children are to be given the surname of the father, although recently a provision has been added allowing the maternal surname to be added to the paternal one at the express request of the couple. These laws have always created obstacles for those seeking dual citizenship, as the transcriptions of vital records are often complicated by a previous change of surname. From the point of view of the Italian state, the subject requesting citizenship should also have a surname in line with Italian law.

Italian law expressly requires the registrar to provide a correction report when he or she receives a birth or marriage certificate from an Italian citizen born abroad (art. 98 of Presidential Decree no. 396 of 2000). Moreover, in the past the Ministry of the Interior have insisted on the “forced” correction of the surname of a foreigner to whom dual citizenship was recognized (by descent or adoption) or who acquired Italian citizenship through other channels (by marriage or residence).
These “forced” corrections often led to an appeals process, with all cases resulting in the restoration of the subject’s original surname; not a surprising turn given that surnames have come to be closely associated with one’s identity and personhood.

To justify the restoration of the subject’s original surname given at birth in the foreign country, judges invoked the constitutional provisions on the protection of identity, the Munich Convention of 1980 on protection of surnames imposed by the State, and the European Union Treaty and New York Convention of 1989 on the protection of surnames imposed at birth. Italian judges passed judgments to restore surnames arguing that the Italian law was in contradiction with European and International accords. However, this solution leaves art. 98 in the legal system and will be up the registrar decide whether to apply it or not.

The Court of Justice of the European Union has dealt with similar transcription issues on several occasions. In 2003 the Strasbourg Court declared that Belgium had to transcribe the double surnames imposed by the Spanish state, in accordance with norms provided by the EU treaty. In 2008 the same court ruled that Germany was obliged to transcribe a double surname imposed on a German subject born in Denmark (which allows double surnames).

Following these cases, Italy’s Ministry of the Interior issued new instructions in 2008, restricting the area of applicability of art. 98. However, there are still some cases where registrars cannot waive correction reports and will impose surnames according to the Italian law (that being the father’s surname).

In conclusion, legal complications involving the change of surname and the acquisition of Italian citizenship remain, and when in doubt, registrars will continue to apply the Italian law faithfully.

If these issues arise in your pursuit of dual citizenship, do not hesitate to contact us.

At My Lawyer in Italy we will be happy to provide you with a legal opinion tailored to your case and provide all official legal support necessary to avoid a forced change of surname.

Read more articles on our website:

If you need any help, feel free to contact us at:

+1 (877) 896-3047 (U.S. & Can)

+3906-9294-6085 (Global)

inquiry@mylawyerinitaly.com

Italy’s Supreme Court vs. US Supreme Court

Posted on

Italy’s Court of Cassation and the Supreme Court of the United States: How do these highest courts in the land match up?

On the most fundamental level, the differences that exist between the highest courts of Italy and the United States reflect their respective legal systems; Italy based on a civil law system and the United States on a common law one. Italy’s Supreme Court (proper name is “Corte di Cassazione”), like its lower courts, is bound to a normative system of law that dictates the rulings of every case it hears. In other words, judges in the Italian system are there more to apply the law than interpret it.

In the Italian jurisdictional system, each case is considered separately and cannot therefore become automatically the basis of judicial precedent for future cases, though rulings may prove authoritative enough to influence future decisions in similar cases. Precedent plays a much larger role in the US system, where rulings from the Supreme Court follow the doctrine of stare decisis. Under this doctrine the ruling of a previous case is either binding or highly persuasive when deciding subsequent cases with similar issues or facts.

Another area where the courts differ significantly is caseload. In 2018 the Italian Supreme Court heard over 35,000 cases, while the US Supreme Court heard only 70 in the same time frame. The discrepancy is due to the fact that the Italian Supreme Court hears every appeal that arrives from the Appellate Court, determining if the law was applied correctly but not rendering a judgment on the facts of the case.

The US Supreme Court, meanwhile, is very selective about the cases it hears, usually only selecting those which would resolve a conflict of interpretation, an egregious departure from judicial proceedings, or an important question of federal law. Unlike its Italian counterpart, the US Supreme Court evaluates both the application of the law and the facts of the case. Due to the sizable gap in caseload, the compositions of the courts are quite different as well. The Italian Supreme Court has over 100 judges in its civil and criminal sections, while the US Supreme Court has only nine justices.

Read more articles on our website:

If you need any help, feel free to contact us at:

+1 (877) 896-3047 (U.S. & Can)

+3906-9294-6085 (Global)

inquiry@mylawyerinitaly.com

Prenot@Mi: Unavailable dates for an appointment.

Posted on

What to do when your local consulate has no appointment dates available.

But what if there is no booking receipt, like when the “Prenot@Mi” does not show any available dates?

The case that was recently brought before the Court of Rome dealt with an individual of Italian descent who was not able to book an appointment with the Italian consulate in San Francisco. She tried several times, but the booking system Prenot@Mi  continued to show no available dates in the next two years. That’s when she decided to contact us.

We explained the complexity of the case, especially given that proof of rejection by the consulate would be difficult, as her only real contact with the consulate had been through Prenot@Mi. We worked with the client to ascertain that proper contact with the San Francisco Consulate had transpired and that the unavailability of a date to file paperwork should be deemed as a rejection of the application by the consulate.

The Court ruled in favor of our client, affirming that if the Italian Consulate in San Francisco failed to provide an appointment within the next two years this entitled the Italian descendant to legitimately bring her citizenship case directly before the court. From this ruling we can gather that lack of appointment availability at consulates is one of the accepted conditions for fast-tracking a citizenship case. Prenot@Mi (Italy’s consulates all feature this system) and lengthy waiting periods no longer have to be an impediment to your application.

Whether you are applying in New York, Chicago, Los Angeles or anywhere in US, please read more about laws and case law on jure sanguinis citizenship, the 1948 case and other conditions for bringing your case before the court to claim your Italian citizenship by descent. 

Read more articles on our website:

If you need any help, feel free to contact us at:

+3906-9294-6085 (Global)

inquiry@mylawyerinitaly.com

How Precedents in Italian Law Work

Posted on

When considering the substantial differences that exist between the “case law” of a common law court decision or the “precedent” of an Italian court, it is instructive to examine how the differing courts function.

 A common law court relies on existing precedents for decisions, but may alter or diverge from precedents which are outdated or where facts of the current case significantly differ from precedent cases. These deviations may lead to changes in law or even inspire new legislation. 

The Italian legal system, meanwhile, operates within a framework where the legislative, executive and judicial branches are completely separate, and consequently only legislative bodies may create new laws. While Italian judicial precedents do exist (usually as a result of legal interpretation by a higher court), due to the separation of powers, they are not a source of law and do not bind judges in the decision of similar subsequent cases.

Taking a closer look at the Italian judicial system, it is worth noting that greater authority is given to Italian judicial precedents that come out of the Italian Supreme Court of Cassation (Corte di Cassazione), Italy’s highest court in civil and criminal matters. 

The Italian Court of Cassation also has a role in giving uniformity to the legal system, and therefore appeals against decisions of lower courts will automatically be dismissed (without a hearing) when a decision of the lower court has been grounded in a principle “in line with” the current jurisprudence of the Italian Court of Cassation (art. 360-bis c.p.c.). 

However, as frequently happens, the various sections of the Italian Court of Cassation may adhere to opposing legal principles. In this event, future cases are decided by a panel of judges from the six different sections. 

This panel, called the United Judicial Sections of the Italian Court of Cassation (SS.UU.), creates precedents which sit atop the legal hierarchy in Italy; in cases where the Italian Court of Cassation does not apply SS.UU. precedent, the section must forward the case to SS.UU. and explain their reason for disagreement.

As one can see from this, Italian legal precedents are not like those created under a common law system. Lawyers under the Italian Judicial system formulate and sustain their arguments based largely on precedents created by the SS.UU. or the standard sections of the Italian Court of Cassation. If these are not available, they turn to precedents from an appellate court. 

First instance court precedents are the very last resort. Likewise, most lower court judges will rely on a higher court’s decision. That said, there is no guarantee that a judge will follow precedent, as each judge is autonomous and can interpret the law as he or she sees fit. 

Judges must, however, provide sufficient legal motivation, which is subject to evaluation by higher court judges and, ultimately, the I.C.C. (standard section or SS.UU.).

Read more articles on our website:

– Italy’s Supreme Court vs. US Supreme Court. 
– Paternity test ruled admissible despite alleged father being deceased

If you need any help, feel free to contact us at:

+1 (877) 896-3047 (U.S. & Can)

+3906-9294-6085 (Global)

inquiry@mylawyerinitaly.com

Acceptance of Inheritance in Italy and the Ten-Year Rule

Posted on

A notable case involving the acceptance of inheritance in the Italian legal system unfolded in 1998 when the will of a man who had died in 1983 was discovered 15 years later (Court of Cassation, II Civil Section, sentence of January 18, 2013 n. 264). The will named a sole heir who had been previously unaware of his inheritance. This heir proceeded to sue the two brothers of the deceased who had inherited the assets in 1983 via legal succession and who had no knowledge of the will’s existence.

The initial court ruling, as well as the Court of Appeals, rejected the claims of the alleged sole heir stating that the ten years wherein inheritance can be claimed had elapsed (art. 480 Italian civil code regulating the acceptance of inheritance).

The heir named in the will then appeared in the Court of Cassation, but was rejected there as well, with the court observing that subjective impediments or ignorance of one’s right does not supercede the law. 

On this occasion, the court reiterated a consolidated principle of law whereby the ten-year term of acceptance of inheritance is aimed at pursuing the certainty of legal situations, crystallizing the heirs and related rights.

The law seeks to grant specific protections to those who have accepted inheritance within ten years of the opening of succession. Consequently, lack of knowledge of a will’s existence does not ensure protection under the law.

But how does a rightful heir accept inheritance in Italy? There are two ways to go about it under Italian law.  Express acceptance takes place when the heir makes a formal statement, usual by way of legal documentation and authenticate signature, to a notary or court registrar. Tacit acceptance is the other way to accept inheritance. This transpires when the heir acts as legal owner of the asset, even if the formal statement didn’t occur. 

Whether it is done expressly or tacitly, the Court of Cassation’s ruling demonstrates the law’s lack of flexibility on the ten-year rule. My Lawyer In Italy can help you better understand how succession in Italy works. Call us today for a free consultation.

And read more about how to avoid falling into common mistakes due to the lack of knowledge of Italian Inheritance law.

Read more articles on our website:

– Heirs behaviors that imply acceptance of an inheritance: Implicit Acceptance
– What Happens if Declaration of Succession Exceeds its Deadline?
– Italy’s Supreme Court vs. US Supreme Court

If you need any help, feel free to contact us at:

+1 (877) 896-3047 (U.S. & Can)

+3906-9294-6085 (Global)

inquiry@mylawyerinitaly.com

Italian Public Notary vs. US Notary

Posted on

An Italian public notary, or notaio, is a public officer who operates in every area of law and is empowered by the Italian State to draft or authenticate documents, agreements or contracts. Unlike a lawyer representing the interests of a client, a notary places neutrality and fidelity to the law above all. As officers vested with the rights of official authority by the state, Italian public notaries act as a guarantee of legality and authenticity to all functions overseen by them.

In the case of real estate transactions, the main role of the notary is to draw up the deed of sale, or atto di vendita, even if the deed is initially proposed by one of the lawyers representing the buyer or seller. In the course of the conveyance process, the notary also confirms the identities of the buyer and the seller, as well as confirming that the respective parties are entitled to take part in the transaction. In addition, the notary attends the signing of the contract, oversees transfer of funds, and ensures new deeds of ownership are registered with the Italian Land Registry. The notary also calculates taxes to be paid for the transaction, collects said taxes upon completion of the sale, and finally pays them on behalf of the two parties. As previously stated, an Italian public notary is entirely neutral, and therefore cannot add any clause to the agreement which may disadvantage one of the parties without explaining the content and legal effects to the parties in a clear and complete manner.

Due to the differences that exist between Italian public notaries and their common law counterparts, prospective foreign buyers may experience confusion about the nature of a notary in this type of real estate acquisition. In the United States, for example, notaries possess none of the legal powers enjoyed by those in Italy. Instead, American notaries only have the power to administer oaths, take affidavits, declarations or depositions from witnesses, acknowledge and attest signatures, and certify copies. Because of their limited role, American notaries are often employed in different capacities (lawyer, court reporter, etc.). Italian notaries, by contrast, are highly-trained, licensed practitioners who provide a range of regulated services and are generally, despite their public position, in private practice. In fact, becoming a notary in Italy is a difficult endeavor. After receiving a law degree, aspiring notaries spend years in practical training before taking the state exam. Consequently, there are fewer than 5,000 notaries currently working in Italy (compared to the nearly 250,000 lawyers).

Read more articles on our website:

– Publication of the Will
– No tax obligations on those renouncing inheritance

If you need any help, feel free to contact us at:

+1 (877) 896-3047 (U.S. & Can)

+3906-9294-6085 (Global)

inquiry@mylawyerinitaly.com

Property Claims, Restitution and Inheritance

Posted on

A recent case involving an inheritance property claim in Italy transpired last year when two brothers sued for ownership of a wine cellar which was being occupied without a property title. Their argument was that the property was part of their inheritance and that they were being unlawfully denied an asset.

The defendant in the case was a woman who had been using the wine cellar for more than 30 years uti dominus, or rather as someone acting or using a good as if they are the rightful or legitimate proprietor. She added that those bringing the lawsuit did not prove ownership of the property, instead merely asserting their status as heirs.

The court sided with the defendant and explained that there is a difference between restitution and claiming of a good. Property restitution in Italy presupposes that the good has been voluntarily passed down by the owner to those who will utilize it through a lease, loan, safekeeping, etc. If the beneficiary doesn’t voluntarily return the good in question, the party claiming ownership makes a judicial request, using the contract as proof of loss of property. 

A contract makes the intent of the original owner clear. They would have been able to take back the property and so by extension would heirs to their estate.

A claim on unclaimed property, meanwhile, requests the release of an asset simply because the current holder lacks an ownership title. This is not easy to accomplish in claims court as adverse possession, or squatter’s rights, is protected in Italy (provided the holder meet certain conditions).

In fact, recently the Court of Arezzo (sentence no. 650/2018), ruled that self-declaration of ownership does not constitute proof of a title, nor does declaring that the asset fulfills a reserved quota for heirs to an estate. This was rightly considered a significant victory for the legal principle of adverse possession.

Ultimately, the court ruled in favor of the defendant based on the inability of the plaintiffs to prove ownership of the original title. 

Read more articles on our website:

– Tony Soprano’s Will: Italian and American Inheritance Laws
– Adverse Possession of Jointly-Owned Properties by Family Members

If you need any help, feel free to contact us at:

+1 (877) 896-3047 (U.S. & Can)

+3906-9294-6085 (Global)

inquiry@mylawyerinitaly.com

Collation of donations made by the deceased in their lifetime

Posted on
Collation of donations made by the deceased in their lifetime
In the course of dividing up an estate, a process of inheritance restructuring known as collation may be requested by one of the participants. Collation adjusts the inheritance of certain descendants (forced heirs) based on the benefits received from the deceased in his or her lifetime.
Italian law considers these types of donations to be a sort of advance on the inheritance. If a legitimate heir believes that he or she has been left less than what is legally entitled to such an heir (forced heirs), the estate must be restructured, adding gifts or contributions made in life to the overall estate. This adjusted amount is used to compensate the injured party.
The courts are often very strict in this area, requiring heirs who bring such cases forward to provide not only a list of gifts given but also the value of each good, which often necessitates the intervention of experts to evaluate the assets.
Legal precedent also stipulates that an estate division claim put forth by an heir may also imply a need for collation, even if the heir has not explicitly requested it, provided that the goods donated by the testator were indicated in detail by the injured party (Italian Court of Cassation no. 22097/15).

Read more articles on our website:

If you need any help, feel free to contact us at:

+1 (877) 896-3047 (U.S. & Can)

+3906-9294-6085 (Global)

inquiry@mylawyerinitaly.com

Italy’s Constitutional Court

Posted on

The Constitutional Court of the Italian Republic, or Consulta, is Italy’s highest court regarding matters of constitutional law. In keeping with the framers’ notion of a “rigid” constitution and a centralized system, the court was designed as an ad hoc organ for constitutional justice separate from the judiciary. The court resolves controversies on the constitutional legitimacy of laws issued by the State or Regions, settles conflicts involving the allocation of powers between the State and Regions, and passes judgement on charges brought against the president.

Consulta vs. SCOTUS

To better understand the ideas underpinning Italy’s approach to constitutional review, a quick comparison with the US Supreme Court is in order. The US Supreme Court, or SCOTUS, functions in a decentralized system and is expressly intended to act as a check on the legislative and executive branches. This is not the function of Italy’s Constitutional Court, which instead sets out to rigidly apply the constitution in its judgments. This is reflected in the selection of cases to be heard. The US Supreme Court has a famously elaborate selection process, choosing cases based on what the individual justices find most pressing or urgent. In Italy, meanwhile, questions of constitutionality that end up in the Constitutional Court are usually simply submitted by ordinary judges. Consequently, the caseload of Consulta is significantly higher than that of SCOTUS.

Even the composition of the two courts highlights the different approaches. As befits a system of checks and balances, the US President fills any vacancy in the Supreme Court and the Senate confirms the choice. Invariably, there is a political component to this. Italy, with it’s more centralized philosophy, seeks to reduce the politics involved by dividing the court into thirds: five judges appointed by the President, five elected by the Parliament, and five elected by the ordinary and administrative supreme courts.

Which is not to say there are no similarities between the courts. As both deal with questions of constitutionality, their judgments have considerable impact on their respective legal systems. In this way, the common law system of the US Supreme Court more closely resembles Italy’s Constitutional Court than its Supreme Court of Cassation. 
This should be particularly kept in mind when reading about the jurisprudential evolution of the 1948-rule for dual citizenship claims heard before the Court of Rome. 

Read more articles on our website:

If you need any help, feel free to contact us at:

+1 (877) 896-3047 (U.S. & Can)

+3906-9294-6085 (Global)

inquiry@mylawyerinitaly.com