Q_&_a_-_july_edition

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Q & a - july edition


(FAQ - Frequently Asked Question)

Your relationship with Italy may closer than you think. Anyone with roots in Italy, even if your grandfather came over two generations ago, will find the following question representative of many inquiries received since we started this series on Italian inheritance matters. I have also included two questions on the recurring theme of document preparation and retrieval.   

Q. My parents and we three children emigrated to the US in 1958, allowing our home to be used by relatives, who have maintained the home and paid any taxes due.

My parents died, leaving the house to us children in 1972.

Do we still own this house under Italian law? Thank you. Natale

A From your description of the events, it appears that there are may be problems. Simply stated, you may lost the title.

If you have not filed two declarations of succession (one for each deceased parent), you and your siblings may not yet have the right to be on title to the house, irrespective of a will. Said another way, the children will always inherit the estate, but you must file paperwork in a timely fashion for your deceased parents.

The fact that you let others pay the taxes is always a concern since along with other conditions one may lose the property by adverse possession. (This is what most of our clients fail to understand leaving the yearly payment of taxes to others and/or letting the relatives live in the property for than twenty years).

In our experience, however, the only way to be sure about the title is to perform a title search which will give the ownership status as of the date it was requested. In your case it is a mandatory since it is one of the 6-7 documents needed when filing a declaration of succession. For more information, contact us directly.

Q. Could you tell me the difference between a "testamento olografo "and a "testamento pubblico". How would it be possible to get a copies? Pietro

A Ciao Pietro. Thanks for asking this basic, however important question.

A testamento olografo, like the English term "holographic will", is simply a handwritten will not requiring witnesses to be present at the time of signing.

On the other hand, a testamento pubblico is prepared by an Italian Notaio in Italy in the presence of the testator and two witnesses. For those unfamiliar with the word Notaio , this is an appointed public official  with a degree in law and other professional qualifications. The title must not to be confused with the simple, perfunctory functions performed by an American notary public.)

By law wills are recorded in a public Register after the testator's death in the Succession Office found within the Tribunale (the Court House) of numerous Italian cities

Q. I know that the English term for a Procura Generale is a General Power of Attorney. But what is a Procura Speciale? Can they be used in Italy after having them notarized?

A. Procura Speciale has its English equivalent in the term Limited Power of Attorney. Whether  one wishes to give full or limited power of attorney is essentially a matter of purpose and trust in the individual receiving the authority to transact business on your behalf.

Do not fail to have translated all notarized documents into Italian. The translation should be done by competent translator specializing in legal terminology and  preferably  with an Italian law degree. However, for the document to be valid in Italy there are two choices: go to the Italian Consulate to have the document notarized or, if the Consulate is not conveniently near to your home, one may also must affix a seal (called “Apostille”) provided by the Secretary of State’s office. Without  the Apostille the power of attorney will not be accepted in Italy or other counties subscribing to the Hague Convention. 

For further clarification, Italian Legal Language Services can be reached in San Francisco at (415) 382-6171 or through their web site www.italianlaw.net

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