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11 May 2015
As of August 17, 2015 the new regulation of the law of succession within the EU comes into force. This regulation affects only the law of inheritance, not the law of inheritance tax or gift tax.
Up to now the law of inheritance has been regulated according to the so-called citizenship law, which means that for a EU citizen who owns a property in Italy the law of their native country applies, independently of where the owner has his main residence (unless he/she has explicitly stated in their will the application of the Italian law of inheritance).
Now, however, the new EU regulation fundamentally changes this practice. It switches from the citizenship law to the principle of domicile: in case of death it has to be established where the testator lived for most of the year. If he/she lived in his/her native country, the inheritance law of that country will be applied. If it was in Italy, the Italian law of inheritance will be applied, unless the testator has explicitly opted for the inheritance law of his/her native country in their will.
Who keeps a second home in Italy, does not have to worry about these new regulations: the law of inheritance of their native country applies. Either a will exists, for example a German will, which means the German law of inheritance is applied, or this law is applied due to the fact that the testator spent most of his/her time in Germany and not in Italy.
In case the testator lived in Italy for most of the time, the Italian law of inheritance is applied, unless the testator has explicitly stated in his/her will that the law of their native country should be applied.
The decisive factor is where the testator spent most of his time. And this usually is where one has the centre of one’s life. One of the indicators for that is that one spends more than 183 days per year in a place, but also one’s professional activity or family connections. Not the official registration with the police is decisive, but the actual situation.
In case of doubt, which law of inheritance should one choose? This question is difficult to answer and can only be answered individually. The testator (and the heirs afterwards) are more familiar with the law of their country of origin and find it easier to get professional advice. In the Italian law of inheritance forced heirship is more pronounced; the higher the portion of legal shares, the less the testator can distribute himself. Important and often ignored is the legal position with regard to joint wills. According to Italian law each testator has to personally draw up his own will.
Independently of the question concerning the law of inheritance, which deals with the succession, the new EU regulations do not chance anything concerning inheritance tax and the necessity to hand in a declaration of inheritance tax in Italy (dichiarazione di successione). In this case it is advisable to seek the help and advice of an expert.
(Source: Schutzgemeinschaft Italien)