Legittima -- reserved shares that cannot be excluded by will
Italy's Civil Code (Articles 536 to 564) sets out strict forced-heirship rules known as legittima --
reserved shares guaranteed by law to specific family members (“legittimari”: the spouse,
children, and, in the absence of children, ascendant parents) that cannot be excluded or reduced by a
will or by lifetime gifts. Where a will or gift erodes a legittimario's reserved share, that heir can
bring an “azione di riduzione” (action for reduction) to reclaim it -- a will that violates
legittima remains valid unless and until challenged by an entitled heir. Exact reserved fractions vary by
family configuration (for example, a materially larger combined reserved share applies where both a
spouse and children survive than where only a spouse survives); NRIs should confirm the precise
percentages applicable to their family situation with an Italian succession lawyer before relying on any
general summary.
EU Succession Regulation 650/2012 (Brussels IV) -- the choice-of-law planning tool
As an EU member state, Italy applies EU Succession Regulation 650/2012, commonly called Brussels IV.
Under its default rule, the law of the deceased's country of habitual residence at the time of death
governs the succession of the entire estate, worldwide, as a single unified matter -- so an
Indian citizen habitually resident in Italy would, by default, have Italian succession law, including
legittima, apply to their whole estate regardless of nationality. Critically, the Regulation also allows
an individual to make a “professio juris” choice-of-law election in a will, selecting the law
of any country of which they hold nationality -- such as India -- to govern their succession instead.
This election is the key planning step an NRI in Italy needs to take to avoid Italian legittima applying
to their estate by default once they become habitually resident there, a facts-and-circumstances test
that is not simply tied to visa or permit status.
Why Italian succession law does not touch assets located in India
Even without a professio juris election, Italy's legittima and the EU Succession Regulation apply to
the succession as a legal matter under Italian conflict-of-laws rules; they do not independently alter
which country's courts and procedures are needed to actually transfer assets situated in India. For an
Italy-based person of Indian origin (or an Indian citizen resident in Italy) who dies owning property in
India, the applicable Indian succession law depends on personal law exactly as it would for anyone else
-- the Hindu Succession Act, 1956 for Hindus, Sikhs, Jains and Buddhists; Muslim personal law for
Muslims; and the Indian Succession Act, 1925 for Christians, Parsis, and those who die leaving a valid
will governing testamentary succession generally. Heirs based in Italy seeking to access a deceased
relative's Indian bank accounts, securities, or movable assets typically need a Succession Certificate
from the relevant Indian court (or Letters of Administration/Probate where a will exists), and can pursue
this through a Power of Attorney authorizing a representative in India, avoiding the need to travel to
India for most stages of the process.
Common mistakes NRIs in Italy make with succession matters:
- Not making a professio juris election in an Italian will, leaving Italian legittima to apply by
default to the entire estate once habitually resident in Italy.
- Assuming Italy's legittima rules automatically govern assets located in India -- Indian assets
still follow Indian succession procedures for actual transfer, whichever law is deemed to govern the
succession as a legal matter.
- Delaying the Succession Certificate/Probate application, which can hold up access to Indian bank
accounts and securities for an extended period.
