There are frequent cases of inheritance of citizens residing abroad who have disposed of their assets in a will which includes assets existing in Italy (usually real estate) and assets located in the foreign country in which the Italian citizen was resident and died. .
The problem therefore arises of verifying which law will regulate the succession, the Italian one or that of the foreign country.
The question is of fundamental importance, since the rules on the validity of the will derive from the applicable law.
We will limit the observations to the case of the will of an Italian citizen, resident in a state not belonging to the European Union.
-In the absence of a will, the succession of an Italian citizen residing in a non-EU State is regulated by the criterion of nationality (art. 46.1 Italian Law 05.31.1995 N.218)
-In the event that the Italian citizen has decided to regulate his succession with a will, he may, with an express declaration in the will, choose the law that will regulate his succession, and therefore choose Italian law or the law of the State in which he resides.
What happens if the Italian citizen residing in a non-EU country declares in his will that he disposes of all his assets and completely excludes from his succession his children or his spouse, to whom Italian law recognizes legitimate shares ?
Well in this case, the legitimate descendants are aided by the art. 46 co.2 L.31.05.1995 N.218, which provides "in the event of succession of an Italian citizen, the choice does not prejudice the rights that Italian law attributes to heirs resident in Italy at the time of the death of the person whose succession it's about.”
Therefore, in this case, regardless of what is decided by the testator, the heirs who were resident in Italy at the time of the testator's death will still be guaranteed that part of the inheritance which Italian law defines as the "legitimate share".
Milano, February 12th 2020.
Avv. Giovanni Babino
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