15 settembre 2013


Cross border succession: Italian or English wills

The impact of Brussels IV after 17 August 2015

Do you own a property in Italy?
Are you indecisive as to whether you should or should not have an Italian will?
Are you confused and have found conflicting information about this subject?
Are you concerned about how to include the Italian property in your will?
Applicable Law

Generally speaking if a person is, at the time of the death, domiciled in England and Wales, his/her English will may have jurisdiction over all immovable assets (e.g., real estate) situated in England and Wales, as well as all worldwide moveable assets (e.g., cash). An English will may also cover the immovable assets located in Italy but it is advisable to seek legal advice from an Italian lawyer to ensure that this is the case.

There are a series of factors, such as the “testator domicile” test that may impact on the ability of an English will to successfully achieve the intended objective, which is to dispose of the testator’s assets as he/she intended. Moreover, certain countries, including Italy, apply “forced heirship” rules that dictate who shall inherit the assets owned in that jurisdiction.

It is, therefore, important not to assume that a will pursuant to the laws of England & Wales will be sufficient to cover assets located in the rest of the world. As a result, it is also necessary to be aware of and to understand the tax implications that will arise upon death.

If a person, or “testator”, wishes to ensure that his/her assets are freely disposed of in accordance with English law, it is advisable to formally register an English will with an Italian notary, and ensure that a provision is inserted specifying that the Italian asset is to be disposed of in accordance with English law, as provided for in the English will. This is the only way a person can be absolutely certain that no problems may arise in relation to the disposal of his/her assets.

Inheritance Planning

The more assets involved and the more complicated the family situation, the greater the need for inheritance planning. If a person has a complicated family situation or owns a set of properties in Italy, or a high-value property located in Italy, it is advisable to devise detailed inheritance plans to ensure that the objectives of the will are achieved.

It is fundamental to ensure that the English will is read in conjunction with the Italian will so as to avoid any unwanted outcome and to ensure that no revocation applies.

Multi-jurisdictional estates are, by their very nature, complex and it is wise to consider obtaining professional legal advice to ensure smooth and tax-efficient succession planning.

Future Changes in Law

On 17 August 2015, new EU regulation regarding cross border succession (EU Regulation 650/2012, commonly referred to as “Brussels IV”) will come into force. This is an important piece of regulation that must be taken into consideration when drafting a will. Although the regulation will not bind the United Kingdom, it may well affect succession to the property of British citizens who have properties in Member States to which Brussels IV applies, e.g., Italy.

According to Brussels IV, the law that will apply will be that of the territory of the deceased’s habitual residence at death but subject to a right to choose the law of another territory of which the testator is a citizen. In other words, if a British citizen domiciled in Italy has immoveable assets in Italy, he/she may elect English law as the law that will apply.

Michele Menato

Italian Avvocato & English Solicitor


Hamilton House, 1 Temple Avenue, London EC4Y 0HA

for more info send an email to info@studiolegalebottino.it