Will & Forms
The will is the central instrument of estate planning. In a German-Italian context, the choice of testamentary form is closely linked to the applicable law – and formal validity is governed by the generous alternative connecting system of the Hague Convention of 1961.
The three testamentary forms under Italian law
- Testamento olografo (holograph will): entirely handwritten, dated and signed – no notary required, but fiduciary deposit with a notary or registration in the Registro Volontario dei Testamenti (CNN) is strongly recommended
- Testamento pubblico (public notarial will): executed before a notary in the presence of two witnesses – highest legal certainty, automatic registration in the Registro Generale dei Testamenti and therefore retrievable internationally (Basel Convention)
- Testamento segreto (secret will): prepared in one's own hand and deposited in sealed form with a notary – a combination of privacy and notarial custody
Revocation and amendment
A will may be revoked at any time – by a subsequent will of any form or by a notarial act of revocation. A holograph will may also be revoked by destruction; merely reclaiming it from fiduciary deposit is not sufficient for this purpose. Where a holograph will is to be completely revoked, the express clause „Revoco ogni mia precedente disposizione testamentaria" in the new will is advisable.
Publication and searching after death
For a holograph will, administration of the estate begins with its publication: a notary draws up a public protocol in the presence of two witnesses, into which the full text of the will is incorporated. The will may then be executed. If heirs are unsure whether a will exists, they may make an enquiry with the Consiglio Notarile Distrettuale using the death certificate; a cross-border search is also possible through the Registro Generale dei Testamenti in Rome.
What is not permitted in Italy
- Joint will (testamento congiuntivo): not permitted under Italian law – each person must draw up their own will
- Inheritance contract (patto successorio): prohibited under Art. 458 c.c. – permissible only where German law has been validly chosen (see Choice of Law)
- Designation of future estates: the subject matter of a will must be identifiable; dispositions over future assets are largely excluded
Recommendation: Anyone with assets in both countries should consider whether two coordinated wills (one for the German estate, one for the assets situated in Italy) are more practical than a single universal will – in order to simplify the notarial administration in both countries.
Choice of Law
The EU Succession Regulation (EU No. 650/2012, in force since 17 August 2015) has fundamentally reformed private international succession law in Europe. It applies universally – including to non-EU citizens habitually resident in a participating Member State.
The general rule: law of the last habitual residence
Without an express choice of law, the law of the state in which the deceased had their habitual residence at the time of death applies (Art. 21 EU Succession Regulation). What matters is a close and stable centre of life – not mere registration of address. The applicable law governs the entire estate, including immovable property situated in other EU Member States: the earlier split between moveable and immoveable property has been overcome.
Choice of law under Art. 22 EU Succession Regulation
A person holding the nationality of another state may, by testamentary disposition, choose the law of that state to govern their succession. The choice must refer to the law of the nationality held at the time of the choice or at death – a free choice among any legal system is not permitted. In the case of dual nationality (e.g. German-Italian), one of the nationalities concerned must be chosen.
The choice of law must be declared expressly in a testamentary disposition – or follow unambiguously from its clauses. It may be revoked at any time and should be reaffirmed in every will. A partial choice of law for individual assets is not permitted.
Strategic considerations for the choice of law
- German succession law chosen: inheritance contract and joint ("Berlin") will are possible; forced share is a monetary claim, not a proprietary quota; 10-year period for aggregation of gifts; more liberal gift law
- Italian succession law chosen: no inheritance contract, no joint will; legittima is a proprietary entitlement without time limit (riunione fittizia); stricter forced heirship protection for children and spouse; more rigorous formal requirements for gifts
- No DTA for inheritance and gift tax: the choice of law does not affect tax liability – tax liability follows its own connecting factors (see Tax Optimisation)
Practical note: The choice of law is not a blank cheque. A choice of German succession law does not provide protection against the obligation under Italian law to file a dichiarazione di successione, to have wills published notarially, and to retitle real property in the catasto. Procedural law (procedura) and conflict of laws (sostanza) operate in parallel.
Gifts
Inter vivos gifts can be an effective instrument for anticipatory succession. They must, however, be structured securely and analysed for their impact on the forced share and on inheritance and gift tax.
Formal requirements for gifts in Italy
Gifts of immoveable property or substantial assets must under Art. 782 c.c. be made by public instrument (atto pubblico) before a notary in the presence of two witnesses. This formal requirement applies on pain of nullity. An exception applies to gifts of low-value moveable assets completed by immediate delivery (donazione di modico valore).
Donazione con riserva di usufrutto
A particularly common arrangement is the gift with reservation of usufruct: the donor transfers the nuda proprietà (bare ownership) to the recipient and reserves a lifetime right to use the property and draw fruits (e.g. rental income). The riserva di usufrutto may also be structured in sequence: first in favour of the donor, and after their death in favour of the surviving spouse. Note that the value of the donated nuda proprietà also enters into the riunione fittizia (forced share calculation).
Donazione indiretta – indirect gift
An indirect gift arises where a parent pays the purchase price for a property acquired in the child's name. Legally it remains a sale – the gift consists in the economic benefit to the child. This arrangement is not subject to notarial certification of the gift itself. It is advisable, however, to declare the origin of the purchase price in the deed of sale: for reasons of tax transparency, clarity in succession law (for the riunione fittizia) and – following recent Court of Cassation case law – to reduce the risk that the indirect gift is apparent to third-party acquirers from the land register.
Gifted properties and marketability
Gifts can restrict the marketability of the gifted property because forced heirs (legittimari) may subsequently bring the azione di riduzione and, if applicable, the azione di restituzione against third-party acquirers. The risk profile depends on four factors:
- Donor still alive: no legally secure remedy – risk difficult to quantify
- Donor deceased less than 10 years ago: remedy by express waiver of all forced heirs of the azione di riduzione/restituzione
- Donor deceased more than 10 years ago (without registered claim): limitation period has expired – no residual risk (Cassaz. SU)
- More than 20 years since land register entry (without opposizione by spouse/parents): third-party acquirer fully protected (Legge 80/2005)
As additional protection, insurance policies are increasingly used to indemnify acquirers and financing banks against the financial risk of a successful restitution claim.
Note: Gifts no longer reduce the inheritance tax exemptions of the heirs in Italy – the coacervo successorio has been abolished. For gift tax itself, however, prior gifts between the same parties are cumulated (coacervo) – the exemptions apply only to the remaining unused amount.
Business Succession
Succession to business interests or family companies with a German-Italian dimension combines succession law, corporate law and tax questions. Early planning is particularly important here, as the death itself can cause operational paralysis in the business.
The patto di famiglia – business succession during the owner's lifetime
The patto di famiglia (Art. 768 bis ff. c.c.), anchored in Italian law since 2006, allows an entrepreneur to transfer their business or company shares during their lifetime to one or more successors – without those assets subsequently being subject to the forced share. Requirements:
- Notarial deed (atto pubblico) with the presence of all legittimari
- Liquidation of the non-benefited forced heirs in cash or in kind (value corresponding to their legittima quota); they may waive the liquidation
- Subject matter: exclusively a business enterprise (azienda) or company shares – not real property, cash or securities
- After conclusion of the pact, the forced heirs party to it cannot bring an azione di riduzione against it
Tax relief for business succession
The transfer of businesses and company shares to descendants and spouses – upon death or by gift, including by way of a patto di famiglia – is exempt from inheritance and gift tax (Art. 3(4-ter) D.Lgs. 346/1990), provided that:
- for sole traders: the beneficiary continues the business for at least 5 years
- for interests in partnerships: the beneficiary holds the interest for at least 5 years
- for shares in companies: the beneficiary acquires or consolidates a controlling majority (Art. 2359(1) c.c.) and holds it for at least 5 years
For real property forming part of the business assets, the tax exemption extends also to imposta ipotecaria and catastale.
Succession law issues with company shares
The death of a shareholder has different consequences depending on the legal form. In a S.r.l. (equivalent to a GmbH under Italian law), shares can in principle pass to the heirs – unless the articles of association contain a clausola di gradimento or clausola di continuazione limitata. In a S.n.c. (equivalent to an OHG), the death of a partner without special provisions leads to dissolution of the company. Forward-looking drafting of the articles is therefore just as important as testamentary arrangements.
Note: The patto di famiglia is restricted to businesses and company shares – real property, cash or securities cannot be its subject matter. For the anticipatory transfer of real property, the gift (if applicable with riserva di usufrutto) remains the appropriate instrument.
Tax Optimisation
In a German-Italian succession, inheritance and gift tax liabilities may arise in both countries. Since there is no double taxation agreement, forward-looking tax planning – ideally during the testator's lifetime – is essential.
Italian inheritance and gift tax
The imposta sulle successioni e donazioni (D.Lgs. 346/1990) applies uniformly to both succession and gifts – with the same exemptions and rates:
- Spouse / children / direct descendants: €1,000,000 exemption each; 4% rate
- Siblings: €100,000 exemption each; 6%
- Other relatives up to the 4th degree: no exemption; 6%
- All others: no exemption; 8%
- Severely disabled persons (Legge 104/1992): €1,500,000 exemption; rate according to degree of kinship
For real property, Imposta ipotecaria (2%) and Imposta catastale (1%) apply additionally – without exemptions. Where the primary residence relief (agevolazione prima casa) applies, a flat amount of €200 each applies instead.
Exemption optimisation through lifetime gifts
In Italy, the €1,000,000 exemption per parent and child may be utilised through phased gifts. The coacervo must be noted: prior gifts between the same parties are set against the exemption. The good news: in the succession itself, the coacervo successorio has been abolished – gifts received during lifetime do not reduce the inheritance tax exemptions of the heirs.
In Germany: gift tax exemptions may be used again every 10 years (§ 14 ErbStG). Long-term, phased gift planning can substantially reduce the German tax burden.
Avoiding double taxation
There is no double taxation agreement between Germany and Italy in the area of inheritance and gift tax. Relief is provided by the tax credit under § 21 ErbStG: the tax paid in Italy on the same assets is credited against the German tax – but only up to the amount of the German tax attributable to the assets situated abroad. Complete elimination of the double burden is not always achievable by this route.
Dichiarazione di successione – new autoliquidazione from 2025
The dichiarazione di successione must be filed online within 12 months of the death – even where no tax is due (otherwise retitling of real property is not possible). For deaths from 1 January 2025 onwards, the heir calculates and pays the inheritance tax themselves (autoliquidazione, Quadro EF-EF18bis) upon filing the return; for earlier deaths, the assessment is made by the tax authority.
Practical tip: Tax optimisation does not begin at the point of succession. Targeted gift planning utilising the exemptions in both countries, combined with a choice of law under Art. 22 EU Succession Regulation and testamentary arrangements, can substantially reduce the overall burden. Individual analysis is essential.