You may have read our article “Will my assets outside South Australia be covered by my Will”. We’re expanding on this to provide a specific example of an estate with a valid Will made in Australia and assets in Italy.
It’s becoming more and more common that Australian residents or citizens find themselves with assets or an interest in assets that are located in another country. Similarly it’s becoming increasingly common for individuals to own assets in more than one country as more and more people own holiday homes abroad or have bank accounts, shares or other investments overseas.
After a person dies having a valid Australian Will outlining an estate with both Australian and foreign assets, issues can arise for the executor or any beneficiaries.
Every country has its own rules in respect to Probate and the law of each country is determined by the nature of the assets.
Where a person dies owning assets in two or more countries (in our example Australia and Italy), then it is usually necessary for a Grant of Probate to be applied for in Australia and for its equivalent to be obtained in Italy where some assets are located.
The process for obtaining Probate varies from country to country and the steps that will be necessary depend on various factors.
In Australia the law applies to whether the asset is a moveable asset or an immovable asset.
Movable assets are assets that may be taken by a person from one location to another; such as bank accounts, shares, furniture etc. Immovable assets are those that cannot be moved by a person such as real estate or an interest in property. In relation to movable assets the law of where the deceased person resided or was domiciled applies and in relation to (immovable assets the law of the country where the property is located applies.
We’ve got an Australian Will with assets in Italy. What happens?
In countries such as Italy, assets are not divided into movable and immovable assets but rather the law of where the deceased is domiciled determines the applicable law for the estate. So if a person who is an Australian citizen dies in Australia but has a house and a bank account in Italy then the applicable law in respect of the assets in Italy are the laws of domicile, which is Australia. However as Australian law determines that the law applicable to “immovable” assets (the house) is determined by the law of where the property is located (Italy) then the law of Italy applies.
Succession law in Italy is also quite different to that in Australia.
For example, if an individual dies with assets in Australia and Italy, it will usually be necessary to go through two separate procedures for the release the assets.
The first is the application for Probate in Australia for the release or transfer of the Australian assets. Second, the process in Italy where the beneficiaries of the Italian estate will need to obtain an Italian Grant of Probate known as Dichiarazione di Successione to enable the assets in Italy to be released to the beneficiaries.
As a general rule in Italy the heirs administer the estate of an individual as Italy does not recognise the concept of personal representatives and so does not recognise the role of an executor or administrator of an estate.
An application for an Italian Grant of Probate should be made within one year of the death of the individual, and the application will need to include details of the deceased, details of the worldwide assets and details of the beneficiaries.
"Due to the complexities of the Italian law and also the need to complete forms in the Italian language it is imperative that an Italian probate lawyer or Notary Public should be instructed to deal with the formalities."
Once completed, the application is sent to the relevant Italian Tax authority (Agenzia delle Entrate) and the beneficiaries will be requested to pay any Italian inheritance tax due before the assets of the estate can be distributed.
Due to the complexities of the Italian law and also the need to complete forms in the Italian language it is imperative that an Italian probate lawyer or Notary Public should be instructed to deal with the formalities. An Italian lawyer may also be appointed as an attorney, pursuant to a Power of Attorney (Procura Generale) to deal with the formalities of the estate administration and to sign documentation required which may facilitate the process. The time that it may take for administering an estate in Italy may vary in accordance with the size of the estate and the region. It is not uncommon for administration of the estate to take from one year to several years.