Can I Make a Will in Favor of Whoever I Want Without Children?

A common misconception is that individuals without children have complete freedom to distribute their estate as they please. However, the presence of close family members, such as a spouse or parents, imposes legal restrictions on how assets can be allocated. This article explores the limitations and conditions under Italian inheritance law for drafting a will when there are no children, particularly considering probate in Italy and Italian succession law.

Married Without Children: Are They Free to Make a Will?

For married individuals without children, the law stipulates that a portion of their estate must still be reserved for their spouse. Specifically, half of the estate is legally designated for the spouse, provided they have not been deemed responsible for the end of the marriage. This reserved share is known as the “legitimate portion” under Italian inheritance law.

The remaining half of the estate, called the “disposable portion”, can be freely allocated to anyone of the testator’s choosing, whether that be friends, extended relatives, or charitable organizations. This aspect of Italian estate planning allows for some flexibility despite legal constraints.

Additional Considerations

While the spouse has a right to the legitimate portion, they can choose to renounce their share. However, such a renunciation is only valid if made after the testator’s death and the opening of probate in Italy. Any agreement to waive inheritance rights in Italy during the testator’s lifetime is legally null and void, even if compensation or other benefits are offered in exchange.
In cases where the spouse does renounce their inheritance in Italy, the testator’s disposable portion expands, allowing for greater freedom in the distribution of assets.

Unmarried Without Children: Are They Free to Make a Will?

Unmarried individuals without children may appear to have greater freedom in drafting a will. However, their parents, if still alive, also hold a reserved share of the estate. Under Italian succession law, one-third of the estate must be allocated to the parents, who are considered “forced heirs” in the absence of children.
The remaining two-thirds, like in the case of married individuals, constitutes the disposable portion and can be freely distributed as the individual sees fit. Parents’ entitlement to the legitimate portion ensures that they are provided for in succession, reflecting their legal rights as close family members.

Renunciation by Parents

As with a spouse, parents may also renounce their legitimate share. However, such a renunciation must comply with strict legal requirements. Any attempt to waive inheritance rights in Italy before the testator’s death is invalid. Only after the opening of probate in Italy can parents legally choose to forgo their portion of the estate, thereby allowing the will to be executed fully according to the testator’s wishes.

When Can You Freely Make a Will?

An individual can fully exercise their freedom to draft a will without any legal restrictions only when there are no forced heirs. This situation arises if the testator:

• Does not have children;
• Is not married;
• Does not have surviving parents;
• Is not in a civil union or registered partnership.

In such cases, the entire estate is considered disposable, enabling the individual to allocate their assets entirely at their discretion. This freedom allows them to leave their wealth to anyone they choose, including friends, distant relatives, or charitable organizations, without fear of legal contestation by family members. This process is particularly relevant for US citizens inheriting property in Italy or those selling inherited property in Italy.

Conclusions

The freedom to make a will in favor of whoever you choose is influenced by the presence of forced heirs, such as a spouse or parents. Italian inheritance law ensures that these individuals are provided for, even in the absence of children.

For married individuals, half of the estate is reserved for the spouse, while the remaining half can be freely allocated. Unmarried individuals without children must allocate one-third of their estate to their parents if they are alive. Complete freedom in drafting a will is only possible when there are no forced heirs.

Given the complexities of Italian estate planning, individuals are advised to consult a legal expert specializing in Italian succession law. A professional can help navigate the nuances of the law and ensure that the will complies with all legal requirements while reflecting the testator’s wishes, particularly regarding inheritance tax in Italy and Italian estate tax.

VGS Family Lawyers is a law firm that specializes in family law matters such as inheritance, separation and divorce, child custody, and more.
In case you need assistance, please write to: info@vgslawyers.com.