There are frequent cases of inheritance of citizens residing abroad who have disposed by will of their assets that include properties existing in Italy (usually real estate) and properties located in the foreign country, in which the Italian citizen was residing and died.
This raises the problem of verifying which will be the law that regulates the inheritance, the Italian one or that of the foreign country.
The question is very important, since the rules on the validity of the will derive from the applicable law.
We will limit the observations to the case of the testament of the Italian citizen, resident in a State not belonging to the European Union.
-In the absence of a will, the inheritance of the Italian citizen residing in a non-EU State is ruled by the criterion of nationality (art. 46.1 Italian Law 31.05.1995 N.218)
-if the Italian citizen has decided to settle his inheritance by will, He may choose, by an express declaration in the will, the law that will rule his inheritance, and then choose the Italian law or the law of the State in which he resides.
What happens if the Italian citizen residing in a State outside the EU declares in his will that he disposes of all his property and that he will completely exclude from his inheritance the children, or the wife, to whom Italian law recognizes the reserved shares?
In that case, it rescues forced heirs article 46 par.2 L.31.05.1995 N.218, which provides: “in the case of inheritance of an Italian citizen the choice does not affect the rights that Italian law confers to the forced heirs residents in Italy at the time of the death of the person (de cuius) whose inheritance is being discussed”.
Therefore, in such a case, regardless of what is required by the de cuius, to those forced heirs who at the time of the death of the de cuius were resident in Italy will still be guaranteed that part of the inheritance defined by Italian law as “reserved share”.
Milano, 12 February 2020
