I advise and represent clients in cross-border inheritance matters with a German-Italian dimension – from estate planning during one's lifetime through estate administration to the resolution of co-heir disputes. The correct drafting of a will, choice of law and tax structure can substantially reduce the burden on heirs and avoid disputes permanently.
Under the EU Succession Regulation (EuErbVO, in force since 17 August 2015), the entire succession is governed in principle by the law of the state in which the deceased was last habitually resident. If you live and die in Germany, German inheritance law applies – including to your holiday apartment or bank account in Italy. The applicable law governs the estate as a whole.
Conversely: anyone permanently resident in Italy who dies there passes on their entire estate – including real property located in Germany – under Italian inheritance law. The former splitting of the estate (immovable property under the law of the situs, movable property under the law of nationality) has been overcome in the relationship between EU member states.
Yes – Art. 22 EU Succession Regulation allows an express choice of the law of one's own nationality. A German national living in Milan can choose German inheritance law in their will; an Italian national in Munich can choose Italian inheritance law. In cases of dual nationality, the choice must be restricted to one of the relevant nationalities.
The choice of law must be expressly declared in a testamentary disposition (will or inheritance contract). It applies to the entire estate – including real property located in Italy where German law has been chosen, and vice versa. A partial choice of law for individual assets is not possible.
Recommendation: The choice of law should be combined with specific testamentary provisions, as on its own it does not yet regulate the substance of the succession.
The European Certificate of Succession (ECS, Art. 62 et seq. EU Succession Regulation) is a standardised document that proves the status of heir, the shares of the estate and, where applicable, the powers of an executor in all EU participating states. In those states it replaces national certificates of inheritance such as the German Erbschein or the Italian dichiarazione di successione.
For the administration of an estate in Italy – in particular for the transfer of real property in the catasto, the closure of bank accounts or the receipt of official information – the ECS is a practical instrument. It is issued by the competent probate court or notary and has a validity period of six months (renewable).
Italian law (Art. 587 et seq. c.c.) recognises three forms of will. The holographic will (testamento olografo) must be written entirely by hand, dated and signed. No notary is required, but it should be deposited with the notarial archive or register. The public will (testamento pubblico) is executed before a notary in the presence of two witnesses – the most legally secure form. The secret will (testamento segreto) combines private preparation with notarial custody.
Joint wills (such as the German Berliner Testament) are not permitted under Italian law (divieto di testamento congiuntivo). Each person must make a separate will.
In principle yes: a formally valid German will takes effect under the Hague Convention on the Law Applicable to the Form of Testamentary Dispositions (1961) and the EU Succession Regulation also in respect of assets located in Italy – provided that German law is applicable (residence in Germany) or has been validly chosen.
In practice, however, difficulties may arise: the will must be recognised by an Italian notary and translated where necessary. If it contains legal concepts unknown to Italian law (e.g. an executor with extensive administrative powers, vested and contingent remainders), implementation can become complex. The Berliner Testament is regarded as a mutual will, not an inheritance contract – and is therefore in principle capable of recognition under the EU Succession Regulation.
Recommendation: Where there is real property in Italy, have the will reviewed for compatibility with Italian administration law.
Under Italian law, inheritance contracts are in principle prohibited (divieto dei patti successori, Art. 458 c.c.). However, if German law has been validly chosen and an inheritance contract is concluded under German law, it must in principle also be recognised in Italy under the EU Succession Regulation – it is governed by the chosen German law.
The practical administration and enforcement in Italy (e.g. at the notarial appointment for the transfer of real property) may cause difficulties, as Italian notaries are not familiar with the institution of the inheritance contract under German law. Early coordination with a lawyer versed in both legal systems is advisable.
Under Art. 536 et seq. c.c., the following persons are entitled to the legittima: children and descendants (whether legitimate, illegitimate or adopted), the surviving spouse, and – if there are no children – the parents. Siblings and more distant relatives are not entitled to a forced share.
The shares: a single child is entitled to at least ½ of the estate; two or more children together to at least ⅔. A spouse without children is entitled to at least ½. With a spouse and one child, each is entitled to at least ⅓; with a spouse and two or more children, the spouse is entitled to at least ¼ and the children to at least ½ in total. Gifts received in advance are also taken into account in these forced shares (insofar as they are subject to hotchpot).
Yes. To calculate the legittima, all gifts made by the deceased during their lifetime are notionally added back to the estate (riunione fittizia, Art. 556 c.c.): value of the estate − debts + value of all gifts equals the assessment base. If the deceased has reduced the forced share of those entitled through gifts, those persons have the right to bring a azione di riduzione (reduction action) – limitation period: ten years from the opening of the succession.
If the remaining estate is insufficient, the action may also be directed against third parties who have in the meantime acquired the gifted property (azione di restituzione). Legge 80/2005 limits this risk: 20 years after registration of the gift in the land register, the restitution action against third-party purchasers lapses – unless the spouse or parents of the donor have interrupted the period by means of a notarially recorded opposizione.
Practice note: The CNN handbook 2023 distinguishes four risk scenarios: donor still living (greatest risk, no reliable legal remedy); deceased for fewer than 10 years (remedy: waiver by all forced heirs); deceased for more than 10 years (right time-barred, no further risk); gift registered more than 20 years ago without opposizione (third-party purchaser fully protected).
Yes – by means of a donazione con riserva di usufrutto (gift with reservation of usufruct). The law expressly allows the donor to reserve the usufruct over the gifted property. Ownership passes to the recipients (nuda proprietà), while the donor retains the lifelong right to use the property and to receive the fruits (e.g. rental income).
In practice this arrangement is particularly common when a parent who is the sole owner of the family home wishes to give the nuda proprietà to their children while reserving the riserva di usufrutto first in their own favour and, after their own death, in favour of the surviving spouse. The gift must be executed as a public deed (atto pubblico) before a notary with two witnesses. The forced heirship implications must be borne in mind: the gifted nuda proprietà is also included in the riunione fittizia.
Italian inheritance tax (imposta sulle successioni e donazioni) depends on the degree of kinship. For spouses and children there is an exemption of €1,000,000 each and a tax rate of 4% on the excess. Siblings have an exemption of €100,000 and pay 6%. For other relatives up to the fourth degree the rate is 6% without exemption. For all other persons the rate is 8% without exemption. Persons with serious disabilities enjoy an increased exemption of €1,500,000.
Compared with Germany, the rates in Italy are low, but the exemptions for close relatives are considerably higher. A blanket statement as to which system is more favourable cannot be made – it depends on the value of the assets and the degree of kinship.
No. There is no double taxation agreement between Germany and Italy in the area of inheritance and gift tax. In principle, therefore, both countries may levy inheritance tax – Germany on the worldwide acquisition if the deceased or the beneficiary was resident domestically; Italy on assets located in Italy or where the deceased was resident in Italy.
The double burden can be reduced in Germany by crediting the inheritance tax paid in Italy under § 21 ErbStG – however, only up to the amount of the proportionate German tax attributable to the foreign assets concerned. Complete elimination of the double burden is not always possible by this route. Planning options should be examined at an early stage.
In addition to inheritance tax itself, two further taxes are payable on real property in an estate, to which the exemptions do not apply: the imposta ipotecaria (mortgage registration tax) amounts to 2% of the value of the property allocated; the imposta catastale amounts to 1%. If the heir satisfies the conditions for the primary residence relief (agevolazione prima casa), both taxes are reduced to a flat amount of €200 each.
The property value used for inheritance tax purposes is the market value (valore venale in comune commercio) at the date of death – it can, however, be capped from below by the cadastral value (multiplied by statutory coefficients): for residential buildings in categories A/B/C, the coefficient is 115.5 (primary residence) or 126 (other).
The dichiarazione di successione is the inheritance tax return required by Italian law. It must be filed online with the Agenzia delle Entrate within twelve months of the death – even where no tax is due, since otherwise re-registration of real property in the catasto is not possible. Late filing incurs surcharges.
For estates from 1 January 2025 onwards: the heir calculates and pays the inheritance tax themselves (autoliquidazione) when filing the return (Schedule EF-EF18bis). For earlier estates, the assessment continues to be made by the tax authority. The return can be filed directly through the online portal of the Agenzia delle Entrate (via SPID, CIE or CNS) or through an authorised representative (notary, lawyer, CAF).
The transfer of inherited real property in the Italian land registers (catasto and conservatoria dei registri immobiliari) is effected by filing the dichiarazione di successione with the Agenzia delle Entrate and subsequently applying for the re-registration (voltura catastale). For the re-registration, proof of entitlement (ECS or certificate of inheritance with apostille and certified translation), the stamped inheritance tax return and cadastral documents are required.
If the property is to be sold afterwards, the notarial execution of a sale agreement (rogito) is additionally required. Where there are multiple heirs, either the co-heirs must act together (all give their consent) or a partition agreement (divisione ereditaria) must be concluded.
A co-heirship (comunione ereditaria) arises automatically when several heirs inherit the estate jointly. Each co-heir may at any time demand partition (scioglimento della comunione). If the co-heirs agree, the partition is effected by notarial agreement (divisione contrattuale).
In the event of a dispute, the matter may be brought before the courts: the giudizio di divisione before the civil court. The court orders the division or – if physical partition is not possible – a forced sale. Cross-border co-heirships with differing national interests make early legal coordination particularly important.
Recommendation: Pursue attempts at settlement and a mediated partition of the estate before bringing proceedings – court proceedings in Italy are time-consuming and costly.