EU Succession Regulation.
The EU Succession Regulation (EuErbVO, No 650/2012) has applied since 17 August 2015 in all EU Member States except Denmark, Ireland and the United Kingdom. It determines which national inheritance law applies to a cross-border estate – and for the first time creates a uniform conflict-of-laws rule for German-Italian estates.
General Rule: Law of Habitual Residence
Under Art. 21 EuErbVO, the law that applies is as a general rule that of the state in which the deceased had their habitual residence at the time of death. If a person lives and dies in Germany, German inheritance law applies – even if they own property or bank assets in Italy. This applies to the entire estate, including assets situated in Italy.
Choice of Law in Favour of the Law of Nationality
Art. 22 EuErbVO enables an express choice of law: a person holding the nationality of another EU Member State may, by testamentary disposition, choose the law of their home state to govern the entire estate. A German national living in Milan may thereby choose German inheritance law for the whole estate – and conversely an Italian national living in Berlin may choose Italian inheritance law. The choice of law must be expressly declared in the will.
European Certificate of Succession (ECS)
The European Certificate of Succession (Art. 62 ff. EuErbVO) replaces national certificates of inheritance and heirship documents in all participating EU states. It is issued by the competent court or notary and entitles the holder to act in another Member State as heir, executor or estate administrator – without additional legalisation or apostille.
Practical note: The choice of law should be made early and expressly in the will. If absent, the law of the last habitual residence applies – which can create uncertainty for those who frequently move between Germany and Italy.
Intestate Succession.
If the deceased leaves no will, or if the will is invalid, intestate succession applies. In the German-Italian context, succession is governed by the national law designated by the EuErbVO – generally either German or Italian law.
Intestate Succession under Italian Law
Italian inheritance law (Arts. 565 ff. of the Civil Code) recognises the following order of succession: children and descendants take first priority and inherit in equal shares. The surviving spouse inherits alongside children in a proportionate share. With a spouse and no children, the spouse receives half; with no other relatives, the spouse receives everything. Parents, siblings and more distant relatives inherit in a subordinate rank. The Italian state inherits as a last resort if no relatives are present.
Intestate Succession under German Law
German inheritance law (§§ 1924 ff. BGB) classifies heirs in orders: first-order heirs are the deceased's descendants. The spouse inherits alongside them one quarter (increased by a further quarter under the community of accrued gains regime). If there are no descendants, parents and their descendants (second order) inherit alongside the spouse. The statutory right of the spouse is more closely linked to the fruits of the marriage than under Italian law.
Special Features Where Assets Exist in Both Countries
Since the EuErbVO came into force, the designated law applies uniformly to the entire estate – including land situated in Italy if the deceased was habitually resident in Germany (and vice versa). The previously relevant scission of succession between movable and immovable property has been overcome as between EuErbVO states. In practice, however, the involvement of an Italian notary remains necessary for the administration of Italian assets.
Note: Even where German inheritance law applies, a dichiarazione di successione (Italian inheritance tax return) must be filed in Italy and the property must be transferred to the heirs in the cadastral register (catasto).
Will & Estate Planning.
Careful estate planning through a will or inheritance agreement is essential in a German-Italian asset situation. It prevents unwanted intestate succession, secures forced heirship entitlements, optimises tax burdens and creates clear responsibilities for estate administration in both countries.
Forms of Will in Italy
Italian law recognises three forms of will: The holograph will (testamento olografo) must be written in full by hand, dated and signed – no notary is required, though deposit and registration are recommended. The notarial will (testamento pubblico) is made before a notary in the presence of two witnesses and offers the highest level of legal certainty. The secret will (testamento segreto) combines handwritten drafting with notarial custody.
Interaction with a German Will
A will drawn up in Germany generally has effect under the EuErbVO conflict-of-laws rules for assets situated in Italy as well. What is decisive is testamentary capacity (determined by the law applicable to the testator at the time of making the will) and formal validity (under the 1961 Hague Convention on testamentary form, a generous alternative connecting factor applies). A joint spousal will (Berliner Testament) or inheritance agreement under German law is permissible where German law applies – including for assets situated in Italy.
Choice of Law and Strategic Estate Planning
The choice of law under Art. 22 EuErbVO should be made deliberately: German law offers the inheritance agreement and joint spousal will, but also strict forced heirship protection. Italian law protects forced heirs through the legittima even more strongly and generally refuses to recognise inheritance agreements (patto successorio vietato). Different solutions may be optimal for business succession and property assets – individual analysis is indispensable.
Recommendation: Always ensure that the will and choice of law are consistent with each other – a valid German will that fails to address property situated in Italy can lead to protracted difficulties with the competent Italian notary.
Forced Share.
The forced share – known in Italian law as the legittima – protects close relatives from complete disinheritance. Both legal systems grant forced heirship rights but differ considerably in scope, beneficiaries and enforcement mechanisms.
Forced Heirs and Minimum Shares (Arts. 536 ff. of the Civil Code)
Italian law protects children (and their descendants), the surviving spouse and – where there are no children – the parents. The statutorily reserved minimum shares (quote di legittima) are:
- One child only: ½ of the estate; disposable share = ½
- Two or more children: together ⅔; disposable share = ⅓
- Spouse only (no children or parents): ½; disposable share = ½
- Spouse + one child: each ⅓; disposable share = ⅓
- Spouse + two or more children: spouse ¼, children together ½; disposable share = ¼
- Parents only (no children or spouse): ⅓; disposable share = ⅔
- Spouse + parents: spouse ½, parents ¼; disposable share = ¼
The spouse is additionally entitled to rights of habitation and use of the family home (diritto di abitazione e di uso) – these are charged against the disposable share. An unmarried partner (convivente) has no statutory right of succession; they are entitled only to a diritto di abitazione for up to five years.
Basis of Calculation: Fictitious Reunion (riunione fittizia)
The legittima is not calculated solely from the existing estate. The relevant figure is the so-called riunione fittizia (Art. 556 c.c.): estate of the deceased − debts + value of all gifts made during lifetime (valued at the time of succession). The forced share percentages are applied to this figure. Lifetime gifts therefore reduce the disposable share – even if made decades ago.
Reduction and Restitution Actions
Where the deceased has encroached upon the forced share through testamentary dispositions or gifts, the beneficiary has two remedies: The azione di riduzione (reduction action) is time-barred ten years after the opening of the succession. It is directed first against heirs and legatees. If the estate is insufficient, claims may also be brought against recipients of gifts – via the azione di restituzione.
In the case of properties that the recipient has in the meantime sold to third parties, the restitution claim could under prior law also affect third-party purchasers. This led in practice to banks refusing to finance properties received by gift. Legge 80/2005 limits this risk: after 20 years from registration of the gift in the land register, the restitution action against third-party purchasers is excluded. However, the spouse and parents of the deceased may interrupt the running of time by a notarially recorded atto di opposizione – which must be renewed every 20 years.
Risk Profile for Gift Properties – Four Scenarios
Following the practice of the Consiglio Nazionale del Notariato, the risk in purchasing a property received by gift can be assessed according to four time profiles:
- Donor still living: the azione di restituzione falls due only after death and within 10 years – risk difficult to quantify, no legally certain remedy
- Donor deceased less than 10 years: risk concrete; remedy through express waiver by all forced heirs of the azione di riduzione/restituzione
- Donor deceased more than 10 years (no court action registered): limitation period expired – no residual risk (Cassazione Sezioni Unite)
- More than 20 years since registration of the gift (no effective opposizione): azione di restituzione against third-party purchasers generally excluded
In practice, insurance policies are increasingly taken out as additional protection, indemnifying purchasers and financing banks against the financial risk of a successful restitution action.
Important: In cross-border estates, the applicable inheritance law also determines which forced heirship protection applies. A deliberate choice of law can influence the forced share burden – but only within statutory limits and requires careful legal advice.
Inheritance Tax.
In a German-Italian estate, inheritance tax obligations may arise in both countries. There is no double taxation treaty between Germany and Italy in the area of inheritance and gift tax. The avoidance of double taxation is therefore governed by the respective national credit rules.
Inheritance Tax in Italy: Exemptions and Rates
Italian inheritance tax (imposta sulle successioni e donazioni, D.Lgs. 346/1990) is levied per heir/legatee on the value exceeding the threshold:
- Spouse / children / descendants in the direct line: exemption of €1,000,000 each; rate 4%
- Siblings: exemption of €100,000 each; rate 6%
- Other relatives up to the 4th degree and relatives by marriage: no exemption; rate 6%
- All other persons: no exemption; rate 8%
- Severely disabled persons (Legge 104/1992): exemption of €1,500,000 each; rate according to degree of relationship
For real estate, two additional taxes apply to which the exemptions do not extend: Imposta ipotecaria (mortgage tax) 2% of the property value; Imposta catastale 1%. Where the conditions for the agevolazione prima casa (first home relief) are met, both taxes are reduced to €200 each (flat rate).
Dichiarazione di Successione – Deadline and New Self-Assessment
The dichiarazione di successione must be filed online with the Agenzia delle Entrate within twelve months of the opening of the succession – even where no tax is due, as filing is a prerequisite for the transfer of property in the land register. For estates arising on or after 1 January 2025, the heir calculates and pays the inheritance tax themselves (self-assessment, Quadro EF-EF18bis); for earlier estates, assessment is carried out by the tax authority.
Gift Tax in Italy (Lifetime Transfers)
Lifetime gifts are subject to the same imposta sulle successioni e donazioni – with the same exemptions and rates as for inheritance. Note must be taken of the coacervo: on a gift, the value of earlier gifts by the same donor to the same recipient is aggregated with the current value to determine the remaining exemption. On death, however, the coacervo successorio no longer applies since the repeal of Art. 8(4) T.U.S. – lifetime gifts by the deceased therefore do not reduce the inheritance tax exemptions of the heirs.
Inheritance Tax in Germany
German inheritance tax (ErbStG) covers worldwide acquisitions where the deceased or the beneficiary is resident in Germany. Exemptions: spouses €500,000, children €400,000 each, grandchildren €200,000 each, parents and siblings €20,000 each. The exemptions may be used again every ten years – including through lifetime gifts. Tax rates by tax class (I–III) range between 7% and 50%. Property situated in Germany is subject to limited tax liability even without domestic residence.
Avoiding Double Taxation
In the absence of a DTA, credit against German inheritance tax is available under § 21 ErbStG where foreign inheritance tax has been levied on the same assets. The credit is limited to the German tax attributable to the assets situated abroad. Careful tax planning – ideally during the deceased's lifetime through staged gifts making full use of the exemptions – can significantly reduce the overall burden.
Practical note: The inheritance tax return in Italy must be filed even where no tax is due – solely to enable the transfer of property in the catasto. Deadlines, self-assessment obligations and formal requirements are strict; early coordination is strongly recommended.
Frequently Asked Questions.
Answers to the most frequently asked questions from advisory practice on German-Italian inheritance law – from the applicability of the inheritance law to will drafting and tax obligations.
Read all FAQs on inheritance law in Italy →Will Checklist.
A structured checklist for estate planning and will drafting in German-Italian asset situations – from taking stock of assets, through the choice of law, to the registration of the will.
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