A family with one foot in Italy and the other in Canada benefits from the richness of two cultures, but it also faces two legal systems that approach inheritance in profoundly different ways. Planning in advance, with both systems in mind, is the best way to prevent children from having to deal with duplicate procedures and conflicting rules. Here is how to navigate wills, applicable law and probate clearly and effectively.
International will between Italy and Canada: why one document may not be enough
Many families have become divided between Italy and Canada over time: parents who emigrated overseas, children born there, a home remaining in Italy and perhaps grandparents who still live there. When the time comes to consider how to pass on what has been built, it becomes clear that an international will involving Italy and Canada is not as straightforward as arranging matters in a single country, and relying on one document alone may prove short sighted.
The reason is simple, but often overlooked. Italy belongs to the European legal tradition, which generally seeks to have the entire succession governed by a single law. Canada, by contrast, falls outside that system and applies its own rules, which also differ from one province to another, as most of the country follows the common law model while Québec follows the civil law tradition. These are two legal worlds that do not automatically interact and may follow different paths when dealing with the same estate.
There is also a very practical consideration. Assets located in Canada usually pass to the heirs through a local court procedure that may not easily accommodate a will designed only for Italy. Similarly, Italian assets remain subject to the rules of the Italian legal system, and in practice it is not uncommon for two parallel succession processes to be required.
Planning that is effective in only one country while overlooking the other risks leaving the family to deal with duplicate procedures, long delays and unexpected costs. Understanding how the two systems genuinely work is the first step towards protecting the next generation, and this is where the planning should begin.
Comparing the Italian and Canadian systems: civil law and common law
To understand the position, it is useful to focus on the fundamental difference between the two legal systems. Succession in Italy and Canada is based on two distinct legal traditions: civil law, to which Italy belongs, and common law, which applies throughout most of Canada, with the exception of Québec, which follows a civil law tradition.
Under the Italian system, the transfer of an estate is essentially a private and direct process. Upon death and acceptance, the heir succeeds directly to ownership of the deceased’s assets, and the court intervenes only where a problem arises. The testator may dispose of their assets within certain limits because part of the estate is reserved by law to close family members, including the spouse and children. Even where an executor is appointed, the executor does not become the owner of the estate. The role is temporary and limited to administration, and court authorisation is generally required to sell an asset.
The Canadian common law model follows a different logic. Between the deceased and the beneficiaries stands a central figure, the executor or administrator, who, following the relevant procedure, acquires legal title to the estate assets in order to collect them, pay the debts and distribute what remains to the beneficiaries only at the end. Testamentary freedom is generally broader, and alternative instruments such as trusts are commonly used to transfer wealth outside traditional succession rules.
These two very different approaches produce practical consequences for who inherits, how the transfer takes place and how long it takes. Ignoring this distinction when assets are divided between the two countries means building the succession plan on a mistaken assumption from the outset.
Probate in Canada: what it means for your Italian assets
One word always arises in Canada when inheritance is discussed: probate. It is important to understand it because it directly affects how an estate involving assets in Italy and Canada should be organised. Probate is not, as is sometimes assumed, the equivalent of the Italian publication of a will. It is a broader process before a provincial court that confirms the validity of the will and the testator’s legal capacity, and gives the executor authority to act. Once this assessment has been completed, the will acquires evidential force similar to that of an official public instrument, and before that stage banks and institutions will generally not release assets.
The procedure serves several purposes at the same time. It confirms the authenticity of the will, ensures that debts are paid before any distribution, determines the value of the estate and calculates taxes and fees on that basis, which vary from province to province. Not every asset passes through probate. Certain assets, including those jointly owned with a right of survivorship or accounts with a designated beneficiary, may transfer outside the procedure.
This creates a potential misunderstanding for an Italian Canadian family. Mechanisms such as automatic transfer to a surviving joint owner are not recognised in the same way under Italian law, which may regard them as inconsistent with its own principles. As a result, jointly owned property situated in Italy will still form part of the succession under Italian rules. Probate therefore operates in relation to Canadian assets, not Italian assets, which continue to follow the Italian legal process. This asymmetry is precisely why planning must consider both sides together.
How to choose the law applicable to the succession
Once the differences have been clarified, the next question is which law governs the succession of someone whose life is divided between the two countries. The answer may surprise those expecting a single law to apply to everything. Canada is a country with several legal systems, and the first step is to identify which provincial law applies, because succession in Ontario, which follows common law, is governed by different principles from succession in Québec, which follows the civil law tradition.
On the Italian side, the interaction may often lead to a specific result known as scission. Canadian common law provinces generally distinguish between movable assets, governed by the law of the deceased’s domicile, and immovable property, governed by the law of the place where it is located. Through the mechanism of renvoi, the Italian legal system may accept this approach, with the result that real estate situated in Italy remains governed by Italian law, while movable assets may be subject to the Canadian law of domicile. In practice, two distinct succession regimes may therefore coexist within the same estate, each with its own rules concerning who inherits and in what shares.
The individual’s wishes are not entirely excluded from this framework. Under European law, it is possible within certain limits to choose during one’s lifetime which law will govern the succession, adding an element of certainty. Canadian assets will nevertheless remain subject to local rules and procedures. Understanding in advance how these systems interact, and what a choice of law can and cannot achieve, makes it possible to plan without unrealistic expectations or legal gaps.
One will or two? How to structure the planning
At this point, the practical question becomes unavoidable: one will or two? For succession planning between Italy and Canada, the most effective solution is almost always two coordinated wills, one covering assets in Italy and the other covering assets in Canada. Each is drafted according to the forms and legal logic of its own country: the Italian will is designed to operate within the Italian legal system and respect the reserved shares of close family members, while the Canadian will is structured to pass smoothly through the local procedure and work effectively with the executor.
The advantage is practical. Since two succession processes may effectively arise, having the correct document for each one avoids requiring the heirs to rely in one country on an instrument designed for the other, with the resulting translations, recognition procedures and long delays. Each will operates within the system for which it was created, reducing time and costs.
There is, however, a serious risk that must be understood because it is one of the most frequent causes of problems. Many wills begin with a declaration revoking all previous testamentary dispositions. If the Canadian document contains that wording and is signed after the Italian will, it may revoke the Italian document without anyone realising. The same can happen in reverse. The paradox is that a person who intended to have two wills may end up with only one, and the problem emerges when it is too late to correct it.
For this reason, two wills should never be drafted separately as if the other did not exist. Each must clearly limit its scope to the assets located in a particular country and expressly acknowledge the existence of the other, so that both can coexist without cancelling each other. Above them must be a single coherent plan covering the choice of law and the substantive provisions. Two wills are helpful only when they are created together.
The role of the lawyer in coordinating the two successions
Bringing together two succession processes governed by such different rules is not something that should be improvised. It requires someone capable of acting as a bridge between two legal systems that do not automatically communicate and of keeping them aligned rather than allowing them to develop independently.
In practical terms, this means identifying which Canadian provincial law applies and how it interacts with Italian law, drafting the Italian will so that it respects reserved shares and is fully effective in Italy, coordinating it with a Canadian will adapted to the local procedure and the executor’s role, and anticipating taxation issues. An estate divided between Italy and Canada may be subject to taxes in both countries, creating a risk of duplication that careful planning, including the use of international conventions where available, seeks to reduce.
There is also the advantage of working directly with Italian notaries and Canadian advisers, bringing both legal systems to the same table and verifying that each document will operate effectively where it is intended to be used. This combination of expertise transforms a potentially chaotic situation into an organised process in which nothing is left to chance.
If your family has roots, relationships or assets in both Italy and Canada, the Family Law Boschetti team can assist you in creating a plan that brings the two systems together, with the expertise and discretion required to ensure that what you have built reaches the people you care about without duplicate procedures or unexpected difficulties, from one side of the ocean to the other.
