A frequent question about the succession of an Italian citizen resident in Switzerland is whether the inheritance is governed by the Italian law or by the Swiss law.
If an Italian citizen, resident in Switzerland, died without leaving a will, his inheritance will be governed by the Italian law.
It is irrelevant whether, in addition to an Italian citizenship, he also has a Swiss citizenship; in this regard art. 19 paragraph 2 of Italian Law No. 218/1995 provides that “if the person has more than one nationality, the Law of the Member State with which he or she has the closest connection shall apply.
If among the nationalities there is the Italian one, thi one will prevail".
Art. 46 Italian Law No. 218/1995 in matters of succession provides that 'The succession for cause of death is governed by the national law of the subject whose inheritance is at the time of death.”
Therefore, in this case, Italian law applies.
Let’s now analyse the situation in the light of the Swiss law.
By examining the Swiss profile of the individual in this particular situation, it has to be considered the existence of the bilateral Convention signed on 22.07.1868 between the Swiss Confederation and Italy (at the time Kingdom of Italy) still in force between the two states.
Art. 17 of that Convention of 22 July 1868 attaches decisive relevance to the criterion of the nationality of the deceased.
Therefore, if the Italian citizen resident in Switzerland died without leaving a will, his succession will be governed by Italian law, regardless of the fact that in the estate there are properties located in Italy or sums of money on bank accounts held by Italian banks or shares, participation shares or dormant funds.
The Italian Law will regulate the succession also regarding donations made in by the de cuius in violation of the reserved shares recognized by Italian law to those entitled.
Art. 17 par. 3 of the bilateral Convention of 22 July 1868 provides that, in the case of an Italian citizen residing in Switzerland and deceased in Switzerland, the Italian Court in whose district the de cuius had the last domicile in Italy, is competent for all disputes between the heirs and concerning the succession.
Let’s now consider the case in which the will exists.
In the event that the Italian citizen resident in Switzerland has written a will and is deceased, the succession will be governed by the Italian law unless, in his will, he has specified that his succession must be governed by the Swiss law.
But even in the case of choice for the Swiss law made in the will remains, in application of art. 50 Italian Law No. 218/1995, the “Italian jurisdiction… if the deceased was an Italian citizen at the time of death… if the application concerns assets located in Italy "(real estate, movable property, shares in companies, participation shares, dormant funds).
It is therefore of utmost importance to plan in time the succession in every aspect, assessing what opportunities are offered and are more suited to the will of those who have a heritage to transmit and thus avoiding that the wills are cancelled out by “twists and turns” at the opening of the succession.
Milano, 23 April 2020
