31 May 2024
Tens of thousands of Scots can trace their family tree back to Italy – with many still having firm roots back to the country through birth or relatives.
Losing a loved one is tough enough, but dealing with the aftermath when this happens abroad needn’t be any more complicated than managing an estate or will in Scotland.
Ahead of Italian National Day, also known as Festa della Repubblica on Sunday 2 June, Wright, Johnston & Mackenzie (WJM) LLP’s Italian-qualified solicitor Mirella Marchini has laid out her top tips for Scots dealing with estates in Italy.
Mirella, Partner at WJM and based in the Dunblane office, advises on every aspect of succession law in connection with both Scottish and Italian estates, including inheritance and succession planning, the preparation of wills, powers of attorney and the administration of trusts and estates.
She said: “It is increasingly popular for people residing in Scotland to also own properties abroad and that includes assets in Italy. Such assets usually consist of a holiday home and a bank account to assist in the management of the property.
“There is no doubt that the process is complex. However, there is some basic information anyone who needs to deal with the winding up of estates where the deceased, although resident in Scotland, also owns assets in Italy should know.
“This advice also applies to Italians residing in Scotland who still retain assets in Italy.”
Here are Mirella’s top four tips:
Italian and Scots Law go hand in hand
It is a common misconception that assets situated in different countries should be treated separately.
In general, if the deceased was domiciled in Scotland, Scots law will determine how to deal with the assets and, although it will refer to the specific legislation of the country where certain assets are situated (in particular, houses and land), any potential Inheritance Tax arising from the estate, will be calculated on the value of all the assets owned by the deceased, irrespective of the country in which they are situated.
There are no borders when dealing with estates
Another misconception is that the nationality of the deceased affects the rules applicable to the winding up of his/her estate.
Different countries apply different rules and Italian law looks at the law of the habitual residence of the deceased, whereas Scots law mainly looks at the law of the place of the deceased’s domicile.
Scottish wills apply in Italy – on conditions
Another common misconception is that a will signed in Scotland may not be enforceable in Italy and, therefore, a separate will would be required to deal with assets in Italy.
A Scottish will is deemed to be validly executed for the purposes of Italian law, as long as certain requirements are met.
Moreover, depending on the individual circumstances of the testator, it might be more cost effective for Italian intestacy rules (the rules applicable in the absence of a will) to apply on the assets situated in Italy, rather than having a Scottish will to be formally deposited in Italy.
This course of action might simplify the process when, for instance, the intended beneficiaries are the spouse and the children of the testator. However, to achieve this, the Italian assets would need to be excluded from the Scottish will.
There are situations where signing a separate Italian will to deal with the assets in Italy might be preferable to having a Scottish will to deal with the entire estate. But in cases like this great care should be taken to ensure that both the Italian and the Scottish wills can co-exist, avoiding a situation where the most recent of the two documents unwittingly revokes the other.
Most importantly – get good advice
Specialist advice should always be sought. However, it is also essential for the solicitor dealing with the matter in hand to receive all the information pertaining to it, no matter how trivial it might appear. Without the correct and complete information, no professional advisor can provide the appropriate advice.
