You made a will in the country where you lived, or where you happened to be at the time, and you also own assets in Italy. Everything may seem properly arranged, but are you certain that the document will actually work here as well? A will that is perfectly valid abroad may encounter obstacles in Italy that emerge only after death, when it is no longer possible to correct them. Here is what should be checked while there is still time.
Is a will made abroad valid in Italy?
This is the question asked by anyone who recorded their wishes while living or staying outside Italy: is a will made abroad valid in Italy? In most cases, the reassuring answer is yes, but with an important qualification that makes all the difference. Validity is not simply an on or off issue. It consists of several elements, and a will may be flawless in one respect but defective in another.
Three different aspects must be distinguished, as they are often confused. The first is form, meaning the way in which the will was drafted and signed. The second is substance, meaning whether its content is permitted by the law governing the succession. The third, and most frequently overlooked, is practical effectiveness. Even a valid will must be made operational in Italy through specific formalities, without which it remains a document that no public office or notary can use.
For anyone who made a will abroad and owns assets in Italy, overlooking even one of these three levels means exposing the heirs to unpleasant surprises. A document that appeared to settle every issue may instead create new ones, with additional time and costs that could have been avoided.
The good news is that all of this can be checked in advance, while there is still time to intervene. This is precisely what we aim to help you do, beginning with understanding when a foreign will withstands the requirements of Italian law and when, instead, it needs to be corrected.
Validity of a foreign will: form and substance
Let us consider the first two aspects in greater detail. As regards the validity of a foreign will, form is the easiest element to preserve because European law adopts a broadly favourable approach. A written will is formally valid if it complies with the law of any one of several countries connected with the person: the country where it was made, the country of nationality, domicile or habitual residence, or, in relation to real estate, the country where the property is located. In practical terms, a will made according to the formal requirements of the foreign country where the person was located will almost always be formally recognised in Italy without needing to be remade.
The substance is more delicate, meaning whether the content is legally admissible and valid. Here, what matters is not so much where the will was made, but which law governs the succession, generally the law of the deceased’s habitual residence. Certain provisions that are lawful abroad are not permitted under Italian law.
The classic example is a joint will made by two people, typically spouses, in a single document. This is permitted in several legal systems but prohibited by Italian law. The same applies to succession agreements, meaning agreements concerning a person’s future estate. If the succession is ultimately governed by Italian law, a will of this kind may fail to produce the intended effects.
Checking in advance that not only the form but also the content complies with the law that will govern the succession is therefore the first truly decisive step, and the one most often overlooked.
Publication of a foreign will in Italy
We now come to the third aspect, which many people ignore until they encounter it directly: practical effectiveness. In Italy, before a will can operate, it must generally be made public through a notarial procedure. Publication of a foreign will follows the same principle. It is not enough for the document to exist and be valid. It must be brought into the Italian legal system so that it can produce effects in relation to assets located here.
Italian law provides that anyone in possession of a holographic will must present it to a notary for publication as soon as they become aware of the testator’s death. The notary draws up a record describing the condition of the document and reproducing its contents in the presence of witnesses. Only after this step can the will be used for the succession declaration, the transfer of real estate records and the other necessary formalities.
Where the will comes from abroad, additional practical steps may be required. A document drafted in a foreign language must be translated and, depending on the country of origin, may require an apostille or legalisation in order to be used in Italy. These formalities may extend the timeframe if no preparation has been made in advance.
For anyone planning during their lifetime, this has a practical meaning. It is advisable to ensure from the outset that the foreign will can be easily located, understood and prepared for publication in Italy, clearly indicating where it is kept and in what form. A will that the heirs cannot find or publish promptly is, in practice, a will that causes delay instead of providing assistance.
Foreign wills and the risk of infringing reserved shares
There is a substantive risk that deserves separate consideration because it is one of the main causes of painful disputes: infringement of reserved shares. Many foreign legal systems, particularly common law systems, grant the testator broad freedom to dispose of their assets, including the possibility of excluding close family members. Italian law follows a different approach. It reserves a share of the estate to the spouse and children, known as the reserved share, which cannot be freely disposed of.
The problem arises when a will made abroad, perhaps under the broad testamentary freedom of the country where it was executed, comes into conflict with a succession governed by Italian law. In that case, a protected heir who has been deprived of their reserved share is not without remedies. After the succession opens, they may bring a reduction claim before the court to recover the share due to them, affecting the testamentary provisions that caused the infringement.
The result is paradoxical. The testator believed they had freely determined the destination of their assets, but part of those wishes is later challenged by the very person they may have intended to exclude or limit.
In our experience, this is one of the most common surprises for people coming from systems that recognise broad testamentary freedom. Establishing in advance whether the succession will be governed by Italian law and, if so, whether the will respects the reserved shares makes it possible to adjust the plan while there is still time, avoiding a dispute that none of the heirs would want.
What to check before it is too late
Let us therefore summarise the checks that should be carried out while there is still time, because a will has one unforgiving characteristic: after death it can no longer be amended, and every uncorrected defect falls on the heirs. The first check concerns the applicable law. It is necessary to determine which legal system will govern the succession, generally the law of habitual residence, and assess whether it should be fixed through an express choice of law, known as professio iuris, so that a future move does not alter the position.
The second check concerns form: ensuring that the will complies with at least one of the laws capable of guaranteeing its formal validity. The third concerns substance: verifying that the content is permitted under the law governing the succession and excluding arrangements such as a joint will where Italian law will apply. The fourth concerns reserved shares: where Italian law applies, it is necessary to confirm that the portions reserved to the spouse and children are respected.
The practical checks are no less important. The foreign will must be accessible, translated or capable of being translated, and ready for publication in Italy. It must also be coordinated with any other wills and considered from a tax perspective, since assets situated in Italy remain subject to Italian inheritance tax.
These are checks that require little when carried out in good time and save a great deal later. Postponing them means leaving the fate of the estate to chance. The expression before it is too late captures the entire point: there is a window, during the testator’s lifetime, in which everything can still be put in order.
The role of the lawyer
It is natural to think that once a will has been made, most of the work is complete. In reality, reviewing a foreign will in light of Italian law is precisely the stage at which legal assistance has the greatest value, because it protects against mistakes that would otherwise emerge when there is no longer any possibility of correcting them.
The lawyer’s role is to carry out a combined analysis of two legal systems. This means determining which law will govern the succession and whether it is advisable to choose the person’s national law, verifying that the form and content of the will are valid, checking that the reserved shares of protected heirs are not infringed where those rules apply, and preparing everything required for the document to be effective in Italy, from translation to prompt publication, while coordinating it with any provisions made elsewhere.
There is also the value of an overall perspective that takes account of taxation and family relationships, transforming a potentially fragile will into a stable and reliable instrument. Where necessary, we coordinate with notaries and lawyers in the country where the will was made in order to verify its original formal requirements and ensure that the documents work together across both legal systems.
If you have made a will abroad and own assets in Italy, the Family Law Boschetti team can review it with you and assess its validity and effectiveness under Italian law, with the expertise and discretion required to ensure that your wishes are genuinely carried out, without obstacles and without leaving the people you care about with the burden of correcting something that could have been resolved earlier.
