Intestacy and foreign assets

X died intestate domiciled in E&W but owned a property in Italy as at the date of death.
I cannot find any authority as to whether the Italian estate should be distributed in accordance with the UK intestacy rules. All the commentary regarding the rebuttable presumption that an estate is to be distributed in accordance with the law of X’s domicile is by reference to domicile at the date of the Will and is silent on the matter of an intestacy. Can anyone help?

Sarah Arundel
Taylor Fawcett

We already send our papers to the Probate Registry at the same time as we submit the full IHT 400 to HMRC. Once the 421 is received, we just forward it on and we’ve never had any problems with them marrying it up despite how slow HMRC are at returning receipted IHT 421s.

Belinda Poulter
Crombie Wilkinson Solicitors LLP

Not sure that this is the reply you were looking for, which may be limited to probate, but with apologies, here goes:

The EU Succession Regulation 650/2012 will apply to the Italian assets were the decease to have died after 17th August 2015, and for that you will need to establish the deceased’s place of habitual residence, not just their domicile, under the terms of that Regulation. It is possible in the current state of play that you may be able to convince the local notary that English law provides a renvoi to Italian law in these circumstances, which might complicate things for you were the rules of Italian intestacy to apply.

That means that you have to clear the decks.

_Article 4 _

_General jurisdiction _

The courts of the Member State in which the deceased had his habitual residence at the time of death shall have jurisdiction to rule on the succession as a whole.

Note that the Regulation only concerns Member States Courts. It remains a moot point whether the United Kingdom is a member State for this attributive article or not. It is clear that the remainder of the administrative parts of the Regulation are currently being interpreted on the basis that the United Kingdom is not a Member State, but, if you want to recover the succession, that might be one option, and thus dictate the duallist mechanism under the remainder. That is but one option using the Regulation alone as the legal framework on the basis that it is a self sufficient piece of legislation. There will be other opinions on this. I do not put this forward as being definitive…

First question is therefore was the deceased habitually resident in Italy, a question which may have fiscal issues, in the event of any non-compliance.

As there is an intestacy, there can be no question of any express option for English law to govern the estate, exercised in writing.

You will need to square off the Italian notary’s attitude towards the English duallist approach to immovables and movables, in any event, I assume that the issue is over an Italian immovable with say a few movables.

There are as many responses to that as there are lawyers, but if you are in funds, you might wish to contact someone like Charlotte Oliver to assist you in the first approach so that you have a line of action.

They can assist in clearing the decks rather than pre-judging the outcome by immediate reference to English principle: you might find that there is a way through depending upon the wishes of the beneficiaries of the intestacy. As things have developed, you may find yourself with several “choices” of jurisdiction, firstly, and then law and approach.

It might be appropriate to consider at some point the old English common law approach to transfer of foreign immovables which remains unrepealed as direct seisin or in French “le mort saisit le vif par son hoir le plus proche”, despite the 1897 and 1925 consolidation. Slight Norman influence remaining over foreign land under English law. This is confirmed by both Megarry and Dicey. I.e. no representation, but direct seisin of the English heirs on intestacy. You may need an opinion to that effect from a Barrister who writes Italian, I have done several on this point in French which have been incorporated into the conveyances by the notary.

I stress here that the Governing Law if English, does not need to import representation as, under the monist, not duallist application of article 2 2. (e) Regulation 650/2012, the transfer under the provisions of the Regulation is immediate by direct seisin as there is no conflict to resolve; merely the lack of jurisdiction taken by the English Courts under duallist principles of comity, which are now interred by the Monist Regulation, barring the odd thrashings of certain notaries seeking to maintain the old duallist order by hook or by crook. Unfortunately, there was correspondence between the then Minister of Justice,Lord McNlally and a certain MEP whic was published in France as if it were a statement of English law, which it certainly was not, and has been seised upon by certain notaries as being a ministerial statement having some legal status. The executive getting beyond itself as usual.

You might however need to check the nationality of your client, as, if Italian, that, in certain circumstances might also open certain doors in the Regulation, which might otherwise best be kept locked: namely article 10. In this case that alternative jurisdiction might provide a further key were the deceased to have been habitually resident in Italy at a recent point in time. The mere fact that the Italian Courts will have jurisdiction over the assets in Italy under that article, does not necessarily prejudge which law is to be applied by them under the remainder of the Regulation.

Hence the need to take a preliminary contact with an Italian lawyer to define what possibilities are open, and which should be avoided.

There will doubtless be other suggestions from members of the TDF to which I will defer. These are mere general suggestions

Peter Harris

Just to throw another spanner in the works, be careful as there are forced heirship laws in Italy, so the ultimate beneficiary of the property may not be the persons(s) you may expect.
Peter Double / Probate Resealing Services