In recent years, the matter of private wealth planning has played an increasingly central role in Italy, particularly as a result of the climate of uncertainty exacerbated by the COVID-19 pandemic. People felt the need to manage and transfer their wealth in order to avoid being caught unprepared in exceptional scenarios. Italian law has always provided several wealth planning tools in order to structure and transfer estates, however the culture of assets organisation and succession planning has shown an increase only in the last few years. A sign of such increased awareness has come from the increase in the number of wills and donations. Also the settlement of trusts has increased in the last few years because of the growing interest for this instrument and, therefore, Italian jurisprudence had to become familiar with complex scenarios of settlors, multiple beneficiaries, and assets held under a legal arrangement governed by foreign law. Now we have established case law that — due to the lack of trust domestic legislation — plays a decisive role in the definition of the trust instrument, as better detailed below. Due to the acknowledgment by the Italian tax authorities of the interpretation put forward in recent years by the Italian Supreme Court concerning the indirect tax regime applicable to the settlement of trusts, trusts are expected to be even more used by individuals for tax planning purposes.
1 . Tax and wealth planning
1.1. National legislative and regulatory developments
Italian domestic rules on the tax residence of individuals
According to Italian tax law, an individual is considered to be an Italian tax resident when, for the greatest part of the tax period, they:
- are enrolled in the registry of the Italian resident population; or
- has their domicile in the Italian territory (the place where the person usually physically stays and where they appear to be willing to stay); or
- has their residence in the Italian territory (the main centre of their economic and personal ties).
The three mentioned requirements are alternatives and not concurrent. The tax period corresponds to the calendar year. No split-year treatment is provided by the domestic legislation
Ordinary personal income tax regime
Items of income
Italian tax resident individuals are subject to personal income tax (IRPEF) in Italy on the basis of their worldwide income. Conversely, non-resident individuals are taxed only on income realized in Italy.
Individual income is classified into the following six categories:
- income from real estate;
- income from capital;
- employment income;
- self-employment income;
- business income; and
- miscellaneous income.
As a general rule, the overall taxable income concurs to the IRPEF taxable basis and is subject to the following progressive rates (that have been updated starting from the 2022 tax period):
- up to EUR 15,000: 23%;
- over EUR 15,000 and up to EUR 28,000: 25%;
- over EUR 28,000 and up to EUR 50,000: 35%;
- over EUR 50,000: 43%.
Certain regional and municipal surcharges apply to the overall taxable income up to a 4% rate.
The great majority of investment and trading income is generally subject to a flat 12.5% or 26% substitute tax. In addition, certain deductions and exemptions are provided (e.g., sale of real estate assets held for more than 5 years).
Italian tax law does not provide for any exit tax for individuals.
Italian inheritance and gift tax regime
The Italian tax law provides for inheritance and gift taxes (IHT), which apply to transfers of assets and rights as a result of death, gifts, or other gratuitous transactions.
Italian resident individuals are subject to IHT on transfers upon death or gifts of all assets, wherever located, while non-Italian resident individuals are subject to IHT only on Italian situs assets.
IHT applies at rates ranging from 4% to 8% depending on the relationship between the deceased/donor and the heir/donee. Certain allowances are provided for close relatives.
As a general rule, the IHT taxable basis is the fair market value of the transferred assets, but different rules apply to specific assets (e.g., real estate assets).
Cadastral and mortgage taxes would be levied on any transfer of Italian-situs real estate at a 3% aggregate rate, regardless of whether such transfers are exempt for IHT purposes.
Exemptions from IHT are provided for certain assets (e.g., transfers of controlling shareholdings if certain conditions are met, insurance policies, and certain government bonds).
In principle, no general “net worth tax” is levied in Italy. However, any individual or entity owning Italian real estate assets is subject to a local property tax, regardless of their tax residence. The ordinary rate is 0.86% to be applied to the cadastral value of the real estate asset. Non-Italian situs real estate assets owned by Italian tax resident individuals are subject to an annual wealth tax at a 0.76% rate; the taxable basis varies depending on the State where the property is located.
Italian tax resident individuals are subject annually to a 0.2% wealth tax on Italian and foreign financial assets (e.g., bonds, shares, other securities, etc.). The current accounts are subject to the wealth tax at the fixed amount of EUR 34.20.
Annual tax monitoring obligations on assets held abroad apply.
Beneficial tax regimes for new residents
Italian flat tax regime
Since the 2017 tax period, individuals wishing to move their tax residence to Italy may benefit from a favorable regime provided that they have been considered non-Italian tax residents for at least 9 out of the 10 tax periods before their relocation.
The regime provides for the application of a yearly EUR 100,000 substitute tax (increased by EUR 25,000 per year for each additional family member opting for the regime) on any foreign-sourced income received by new Italian residents. Any Italian-sourced income will be ordinarily subject to IRPEF.
The main features of the Italian flat tax regime are the following:
- no IHT is due on transfers of non-Italian situs assets upon death or gifts;
- exemption from wealth taxes and tax monitoring obligations on assets held abroad;
- capital gains upon disposal of qualified participations in foreign companies are out of the scope of the substitute tax if incurred within 5 years from the first year of the regime’s validity (the anti-avoidance rule);
- the individuals are entitled to benefit from Double Tax Treaties for income tax purposes entered into by Italy, save that the specific Double Tax Treaty provides otherwise;
- possibility to file an advance ruling request to obtain confirmation of the applicant’s eligibility for the regime, confirmation that a specific item of income is covered by the substitute tax, and the possibility to disapply the anti-avoidance rule.
Italian pensioners regime
Since the 2019 tax period, non-Italian tax resident individuals holding foreign pensions and moving their tax residence to certain Italian Municipalities may opt for the Italian pensioners’ regime, which provides for the application of a flat 7% substitute tax on any foreign-sourced income, provided that they have not been Italian tax resident for at least 5 tax periods before their relocation and other conditions are met. Any Italian-sourced income will be ordinarily subject to IRPEF.
The regime provides for the exemption from wealth taxes and Italian tax monitoring obligations on assets held abroad.
Italian inpatriate workers regime
Non-Italian resident workers who – irrespective of their citizenship and State of residence – transfer their tax residence to Italy, may opt for the Italian inpatriate workers regime that provides for the application of IRPEF, for five tax periods, on a portion equal to 30% of their employment income, quasi-employment income (i.e., directorship fees), self-employment income, and business income (with an effective tax rate of approximately 14%), provided that they have been non-Italian tax resident for at least 2 tax periods before their relocation and they work predominantly in Italy. The personal income tax basis is reduced to 10% if the workers transfer their residence to certain Southern Italian Regions and is increased to 50% for sportsmen.
1.2. Local legislative and regulatory developments
From a tax perspective, trusts are recognized as taxable entities, to the extent that they are not regarded as interposed under Italian tax law. The Italian tax authorities have provided several guidelines dealing with the direct and indirect tax aspects related to trusts.
Italian resident trusts are subject to tax in Italy on their worldwide income, while non-Italian resident trusts are subject to tax in Italy on their Italian-sourced income only.
Italian law provisions distinguish between opaque trusts (i.e., discretionary trusts) and transparent trusts (i.e., trusts whose beneficiaries are identified). Income realized by an opaque trust is subject to corporate income tax in the hands of the trust itself, income realized by a transparent trust is directly attributed to the beneficiaries on an accrual basis and taxed in their hands.
As regards taxation of the beneficiaries, any distribution made by a non-resident opaque trust should not be subject to income tax in the hands of the beneficiaries, unless the trust is established in a low-tax jurisdiction. In this latter case, the income distribution is subject to IRPEF in the hands of the Italian tax resident beneficiaries according to a tax provision that is in force from the 2019 tax period.
On 20 October 2022, the Italian tax authority released Circular Letter No. 34/E, concerning direct and indirect taxation applicable to trusts and beneficiaries, as well as tax monitoring obligations.
In particular, with respect to indirect taxes (IHT and mortgage and cadastral taxes), the guidance acknowledged the position of the Italian Supreme Court provided in several judgments in the last years, according to which the transfer of assets to a trust does not entail an immediate and actual transfer of the ownership of such assets and then is not subject to indirect taxes at proportional rates. Indeed, the indirect taxes will be due in case of distribution of the assets settled in the trust to the beneficiaries.
1.3. National case law developments
In the past 4/5 years, the indirect taxation of trusts has been addressed in several decisions of the Italian Supreme Court. Indeed, the judges stated that the transfer of an asset to a trust does not produce an immediate and actual translational effect, but shall rather be considered as a mere impoverishment of the settlor, not linked by default to a correspondent enrichment of the beneficiary which is, in turn, the event giving rise to the application of inheritance and gift tax. Such interpretation is now consolidated and has also recently been agreed upon by the Italian tax authorities, which in the past called upon the application of indirect taxes (including IHT) upon the transfer of assets by the settlor to the trust (irrespective of the effective enrichment of the beneficiaries).
1.4. Local case law developments
In recent judgments, the Italian local tax Courts dealt with the tax regime applicable to financial life insurance policies (e.g., unit-linked policies), outlining the factual and contractual elements relevant to the disapplication of the beneficial tax regime applicable to life insurance policies.
The elements taken into account by the Courts are, inter alia, the following:
- no minimum return guarantee and obligation to return the invested capital;
- no coverage from demographic risk, as there was no premium for the occurrence of death (i.e., in case the company only has the obligation to liquidate the value of the financial instruments included in the policy);
- option to request early redemptions, either total or partial, making the contract term irrelevant;
- the policyholder provides instructions concerning the specific investments underneath the policy; and
- the insurance company does not bear any effective risk concerning the insured event.
In a nutshell, life insurance policies are subject to the following tax treatment:
- a 26% substitute tax on the difference between the amounts transferred to the policy and the amounts received upon redemption;
- the postponement of taxation upon the redemption;
- exemption from income taxes for the amounts payable by the insurance company for the coverage of the insured event; and
- exemption from IHT.
If a financial policy is disregarded, the assets under the policy are considered to be held by the policyholder and the income arising from such assets would be subject to tax on a cash basis according to the relevant tax regime.
1.5. Practice trends
Due to the acknowledgment by the Italian tax authorities of the interpretation put forward in recent years by the Italian Supreme Court concerning the indirect tax regime applicable to the settlement of trusts, trusts are expected to be even more used by individuals for tax planning purposes.
Indeed, the new guidance of the Italian tax authority confirms that IHT shall apply at the moment of the transfer of the trusts’ assets to the beneficiaries as a final transfer. The guidance further confirms that:
- in order to determine the different applicable IHT rates the line of kinship existing between the settlor and the beneficiary of the trust at the moment when the assets are transferred to the beneficiaries should be considered; and
- the moment when the assets are settled to the trust should be considered in order to the determine whether such transfer falls within the territorial scope of IHT or not.
According to this new interpretation, the IHT might never be due in case no capital distribution is made to the beneficiaries.
1.6. Pandemic related developments
Italy has not issued any law or regulation concerning this issue. The Italian government has entered into specific agreements with certain foreign States concerning the taxation of frontier employees working in home offices due to the continuance of the COVID-19 pandemic.
Also, the Italian tax authorities focused their attention on the possible configuration of permanent establishments in Italy of foreign companies as a result of the fact that certain employees were forced to work from their homes in Italy due to the restriction to movements as a result of the pandemic.
2 . Estate and trust administration
2.1. National legislative and regulatory developments
The matter of estate administration is provided in Italy by the second book of the Italian Civil Code, which was adopted by Royal Decree No 262 on 16 March 1942. Since then there have been no particular legislative developments on the matter. In general, Italian law provides for various figures who have the task of administering the assets of the estate from the moment of the opening of the deceased’s succession until the moment of the acquisition of the assets by the relevant heirs. Specifically, under the will a testator can appoint a third person in whom they place particular trust as executor of their will: it is understood that the appointment of an executor is not mandatory. The subject appointed as executor shall administer the deceased’s estate to ensure that the provisions of the deceased’s will are executed accurately: estate administration can involve selling real estate, preparing tax returns, paying debts, and preparing and furnishing accountings to beneficiaries, all of which must be handled appropriately before bequests are given to the beneficiaries. While performing his office, the executor may perform acts of extraordinary administration, subject to the authorisation of the judge, after hearing the heirs.
With reference to trust administration, Italian law does not provide for domestic legislation concerning trusts; trusts are recognized and enforced in Italy pursuant to the provisions of the Hague Convention of 1 July 1985 on the law applicable to trusts and their recognition, which was ratified in Italy with Law No 364 of 16 October 1989. Due to the lack of domestic legislation, trusts can only be established in Italy subject to a foreign governing law that provides for trusts (and in accordance with the Convention provisions). As a consequence, the trust administration is also regulated by the foreign law chosen as the governing law of that trust together with the relevant Convention provisions.
2.2. Local legislative and regulatory developments
Italy has no local legal provisions on estate and trust administration; therefore, there have been no regulatory developments in this regard.
2.3. National case law developments
There have been no significant developments in the national case law of recent years in regard to estate administration and many decisions recently adopted by the Italian Supreme Court have merely reaffirmed long-established principles.
In particular, with reference to the role of the executor of an Italian will, the Italian Supreme Court has clarified in several recent judgments that the executor of a will acts in its own name but in the exclusive interest of executing the will’s provisions, under the control of the judicial authority (inter alia, Italian Supreme Court, decision No. 24147 dated 26 November 2015) at the same time, the executor is required to manage the estate of the deceased, taking possession of the assets included in the estate, as a fair pater familias, and can perform all necessary acts of management with no time limits (inter alia, Italian Supreme Court, decision No. 12241, dated 14 June 2016).
With reference to trust administration, Italian case law decisions played a decisive role in the definition of the terms of powers and legal qualification of such activity. In the past few years, there have been several disputes among, inter alia, whether the assets conferred in trust should be considered as a separate fund or part of the trustee’s estate. In such perspective, recent decisions have expressly recognized that the trustee’s ownership of assets in the context of a trust settlement has a mere “temporary nature”, and it has been clarified that the effective transfer of the ownership shall occur when such assets are transferred to the beneficiaries of the trust. More specifically, Italian Supreme Court, with decision No. 19558 dated 17 June 2022, has ruled that the transfer of assets on trust settlement does not consist of an effective transfer of ownership to the trustee. The trust assets are placed by the settlor under the control of a trustee for the benefit of a beneficiary or a specified purpose. Therefore, such assets constitute a separate fund and are not a part of the trustee’s own estate, so that the trustee’s creditors cannot impair them. The Supreme Court has also recently recognised the validity and effectiveness of the self-declared trust, i.e., a trust in which the trustee and settlor are the same person (inter alia, Italian Supreme Court, order No 734, dated 7 November 2018).
2.4. Local case law developments
As mentioned, the executor of a will must comply with provisions of the will in order to execute the wishes of the testator exactly, carrying out for this purpose mere material fulfilments. It follows that they are entitled to take part in legal proceedings involving the deceased only in order to duly implement the will’s provisions. The Court of Appeal of Genova, with decision No. 440 dated 16 April 2021, has reiterated this principle. The Court has stated that – should the deceased be involved in legal proceedings during their lifetime claiming their rights against third parties – the heirs of the deceased are the sole persons entitled to take part in these proceedings after their death, even if the deceased appointed an executor of the will.
By contrast, with reference to trust administration, due to the absence of domestic legislation, local case law decisions played a decisive role in the definition of such activity. In particular, the Court of Bologna, with decision No. 2209 dated 2 September 2022, has stated that – since the trust does not have a legal personality – the trustee represents the sole centre of imputation of subjective legal situations pertaining to the trust. Pursuant to the Convention provisions, the term “trust” merely refers to the legal relationship created – inter vivos or on death – by a person, the settlor, when assets have been placed under the control of a trustee for the benefit of a beneficiary or a specified purpose. Therefore, the trustee, having the exclusive power to dispose of the rights on the trust assets, shall be the sole person entitled to enforce them in relations with third parties. In this respect, the Court of Cassino, with decision No. 17 dated 8 January 2009, has qualified the trustee as the party entitled to take part into a proceeding commenced by a settlor’s creditor in order to obtain the revocation of the deed of trust harming to his interests, since the title to the trust property stands in the name of the trustee and the latter is the sole party authorised to intervene for the protection of it.
2.5. Practice trends
Traditionally, the appointment of an executor of a will was not a widespread practice. Nowadays, in line with a more general intention of people to plan the generational transfer of their estate, this figure seems to be more valued. The appointment of an executor may take place, for instance, if the testator has no confidence in the heirs, especially when the latter’s interest is at odds with certain provisions of the will or due to the presence of disputes between those entitled to the estate or the existence of objective difficulties in executing the testator’s wishes. With reference to the trust administrator, the practice of assigning such a role to legal persons – whether or not belonging to banking groups – operating on a professional basis is becoming increasingly widespread in Italy, in order to ensure continuity over time and competence in performing the task.
2.6. Pandemic related developments
Given the growing climate of uncertainty caused by the pandemic, the use of asset protection instruments continued. In particular, because of the pandemic, people felt the need to manage their wealth in order to avoid being caught unprepared in front of exceptional scenarios. The careful choice of an administrator to ensure full implementation of the testator’s will or the proper execution of the trust program defined by the settlor ensure a greater sense of protection.
3 . Estate and trust litigation and controversy
3.1. National legislative and regulatory developments
Certain reforms occurred in family law matters which have had a significant impact on matters of estate. These include the regulation of filiation (as per Law of 10 December 2012, No 219, which sought to achieve complete equality of treatment of all children with regard to the filiation relationship) and the amendment introduced under Law of 20 May 2016 No 76 (the so-called “Cirinnà Law” that has introduced the possibility in Italy for two persons of the same sex to enter into an arrangement similar to marriage, called “civil union”, recognizing them – in case of death of one of the partners – the same inheritance rights provided for married couples by the Italian Civil Code). Moreover, the recent entry into force of the European regulation. No. 650/2012 can be considered a turning point in terms of the law applicable to the successions of citizens of European Union states.
With reference to trusts, as anticipated, Italian law does not provide for comprehensive domestic legislation; however, the Italian legislator has enacted some law provisions concerning trusts over the years. In particular, under Law No 112 of 22 June 2016 – better known as “Dopo di Noi” and containing provisions on assistance for persons with severe disabilities without family support – the Italian legislator has recognized the use of trust as one of the instruments that can be used as measures of assistance, care and protection for disabled persons.
3.2. Local legislative and regulatory developments
Italy has no local legal provisions on estate and trusts.
3.3. National case law developments
Traditionally, family disputes among heirs in Italy mainly arise from the violation of the reserved shares committed by means of testamentary dispositions or donations made by the deceased during their lifetime. Such traditional disputes have combined with the complexity of the current family structures: civil unions, de facto cohabitation and more marriages per person. New disputes have also arisen with regard to the widespread use of additional estate planning tools and in connection with the transnational natures of many situations. With reference to trusts, thanks to the national case law developments, doubts on the validity of the instrument of trust are overcome. Therefore, if compliant with the Convention and the relevant foreign governing law, trusts are now recognized as enforceable in Italy subject only to the Italian public order principles. Even trusts ‘interni’ (i.e., trusts established by Italian individuals with regard to assets located in Italy and where the sole foreign element is the governing law) are now fully recognized as valid by the Italian case law (inter alia, Italian Supreme Court, decision No. 10105, dated 9 May 2014; Italian Supreme Court, decision No. 15804, dated 16 April 2015). In addition, since trusts ‘interni’ are regulated by foreign governing law, should a dispute pertaining to a trust be conferred to the jurisdiction of an Italian court, the latter shall be required to apply the relevant trust foreign governing law. In this perspective, in a recent decision adopted by the Court of Ancona (decision No. 414, dated 29 January 2014), the judges – applying the provisions of Article 51 of the law of Jersey – have come to issue a measure (not known in the Italian legal system) similar to the one that could have been issued by the Court of Jersey. Finally, as of today, the Italian Supreme Court (decision No. 9637 dated 19 April 2018) has definitely overcome the theory according to which a trust was an “atypical contract” and therefore subject from time to time to judicial review as to its merits: such assessment is to be considered to have already been made with Italy’s ratification of the Convention which recognised the circumstance that the trust instrument is intended to realise interests worthy of protection under the Italian legal system.
3.4. Local case law developments
The first two judgments issued by Italian Courts concerning “digital inheritance” should be highlighted. In particular, the Court of Bologna on 25 November 2021 (following a single ruling in such matter by the Court of Milan in the same year), has ruled on the transfer mortis causa of digital data belonging to a deceased person in favour of their heirs. The decision addresses, for the first time in Italy, the issue of the access to personal data of a deceased person, as well as the ways in which the rights of the deceased can be exercised by their heirs. In the Court’s opinion a specific will expressed by the de cuius may exclude the possibility of their heirs having access to their digital data. With reference to trusts, local case law has mainly reaffirmed the same principles provided for by national case law. In particular, local Courts have also affirmed the validity of trusts ‘interni’ compliant with the Convention and the relevant foreign governing law. In the decision of the Court of Bologna dated 1 October 2003, the Court has clarified that the only limit to the validity of trusts ‘interni’ is that they must be able to pursue legitimate interests, which is to say interests not prohibited by Italian mandatory rules. Moreover, local courts are increasingly faced with trusts set up for a wide variety of purposes. In particular, trusts are increasingly used in the context of divorce proceedings. In this respect, the Court of Turin, with a decree dated 31 March 2009, has provided for the first time the establishment of a trust in a divorce decree. The Court considered the trust instrument as the most suitable tool to segregate the economic resources to be used for their children until they achieve economic independence. In connection with the adoption of Law No 112 of 22 June 2016 (better known as “Dopo di Noi”), trusts are often used as a measure to assist persons with severe disabilities. A first relevant example of the use of a trust instrument in this sense can be found, among others, in the decree issued by the Court of Florence on 8 April 2004, by which the Court has authorised the parents of a minor child affected by disabilities to set up a trust with the assets of the child himself.
3.5. Practice trends
Also with a view to ensuring freer transfer of inheritance assets, there are now persistent voices calling for a renewal of the principles concerning the rights of the forced heirs in such a way as to free the assets of donative inheritance from the constraints of possible legal action and to overcome the prohibition of agreements on renouncement of inheritance. With reference to trusts, the use of such an instrument is now widespread and continuous. Trusts are now used in Italy for new specific purposes and are frequently established not only for the purpose of passing wealth and control from generation to generation but also for the benefit of individuals with disabilities or for charitable initiatives (both by public entities and individuals).
3.6. Pandemic related developments
Given the growing climate of uncertainty caused by the pandemic, the use of asset protection instruments has continued. A sign of such increased awareness has come from the increase in the number of wills and donations, the latter often involving only bare ownership of real estate and company’s shares, thus allowing the donor to retain full disposal of them. In the same perspective, the trust instrument is now considered one of the best arrangements to ensure legitimate preservation and transfer of the wealth, but also a flexible tool that can satisfy the economic needs of the settlor and their family according to actual circumstances.
4 . Frequently asked questions
1. Are there beneficial tax regimes for new Italian tax resident individuals?
The Italian legislator has implemented in the past years three main beneficial regimes that are applicable to individuals relocating to Italy. The three regimes are aimed at attracting, respectively, HNWIs, pensioners and workers (employees, directors, freelance and entrepreneurs).
2. Could an Italian will remain valid even if it is not compatible with the Italian forced heirship rules?
Please consider that, as per the Italian succession law, a will remains valid even if it does not comply with the reserved share rule, but in such a case it may be challenged by the forced heirs (or their descendants) alleging that their reserved shares were infringed by the will.
3. Would it be possible to set up a trust which disregards the rights of forced heirs?
Article 549 of the Italian Civil Code provides that the forced heir is entitled to receive and enjoy their reserved share immediately upon the opening of the succession, without any restriction, lien and condition. Therefore, a trust preventing the forced heir to receive or enjoy their reserved share would not comply with the above mentioned law provisions, even in the case in which the forced heir is a beneficiary of the trust.