Inheritance law: first steps to better manage an international inheritance

Marcello Mantelli
Avvocato in Milan and Turin

inheritance

According to Italian law, the inheritance procedure begins at the time of the death of a person in the place of his last domicile. Through this institution, the transfer of legal positions, whether active or passive, from the deceased to the heirs is determined.

In the Italian legal system, two types of inheritance procedure are mainly distinguished:

based on a will (successione testamentaria), if the deceased has arranged the assignment of his assets to the heirs and eventually to the legatees in the will;

based on the law (successione legittima), if, in the absence of a will, the law intervenes to identify the heirs and assign them the hereditary assets.

In both cases, the inheritance is acquired by means of acceptance, which can be expressed (through a public act or a private deed) or tacit (by carrying out a so-called “conclusive act”, i.e. an act that, even if it is not an acceptance, is sufficient to affirm the will of the heir to accept).

In the different case in which the inheritance presents elements of internationality with respect to its own legal system, it is known as an international inheritance.

In such a case, before proceeding with the acceptance and the necessary formalities, it is first of all essential to understand which discipline applies and therefore which law is applicable to the procedure.

From a practical point of view, identifying the law applicable to international inheritance means identifying the rules applicable to the specific case, among which, for example, the rules on taxation (some countries enjoy a more favorable tax regime than others), as well as those on the distribution of inheritance shares and those on the validity of the will and on the procedures for assigning assets.

At European level, these rules have been standardized thanks to the EU Regulation 650/2012, which constitutes the uniform international private law on inheritance in all EU countries (with the exception of Ireland and Denmark).

By way of example, as regards the competent court and applicable law in the event of an international inheritance, the Regulation identifies them in the place of habitual residence of the deceased, understood as the main permanence in a given place with the intention of establishing one’s own residence (while, for example, previously Article 46 of Italian private international law no. 218/1995 established that the applicable law should be that relating to the citizenship of the deceased).

On the other hand, in the event that persons from third countries outside the European Union are involved, and their private international law provides for different connecting criteria, legal disputes may arise in different states.

Given the complexity profiles linked to an international inheritance – determined, for example, by the different citizenship and/or residence of the subjects involved and by the location of the deceased’s assets in different countries – the first operational step to be taken in addressing these issues therefore lies without doubt in identifying the law applicable to the specific case.

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