The appointment of an executor under a will in cross-border succession cases governed by Italian law

• In the case of successions governed by Italian law with elements of internationality and where there are testamentary dispositions requiring implementation and special technical expertise, it may be very useful to appoint an executor of the will

• He may also perform acts abroad, being able to use the European Certificate of Succession in another member state to prove his quality and powers

• Without prejudice to the right to reimbursement of expenses, the appointment is free of charge unless the testator has established in the will a remuneration from the inheritance

Under Italian law, the fulfilment and implementation of the provisions contained in a will are normally reserved to the heirs. This task can be particularly complex in cross-border succession cases and where there is a need to make testamentary dispositions (e.g. where the testator intended for certain assets in his/her estate to be sold in order to allocate the proceeds to certain individuals). Indeed, in cross-border successions, the assets, the heirs and the legatees may be located in different countries, which means that they are in turn subject to different laws.

Under these circumstances, where the succession is governed by Italian law, the appointment of a testamentary executor (pursuant to sections 700 et seq. of the Italian Civil Code[1]) may prove particularly useful. The testamentary executor is a person entrusted by the testator with the task of implementing the provisions of the will. This means that the executor is responsible for ensuring the will’s provisions are complied with and may also perform acts abroad, including using the European Certificate of Succession in another Member State to prove his/her authority and powers. The testator usually appoints someone who they trust and who has specific expertise in the valuation and administration of assets. It may also be useful to appoint someone who has legal and technical knowledge, in order to facilitate the process of administrating the estate.

The executor may also be a legal professional, or one of the heirs or legatees. It is possible to appoint more than one executor. If this is the case, the executors must act jointly, unless the testator has specified otherwise or unless there is an urgent need to protect an asset or a right of inheritance.

The appointed executor may freely decide to accept the appointment or to renounce it, and must evidence their decision by a declaration made to the court registry office. The court may also, at the request of any interested party, assign the appointed executor a time limit for accepting the role, after which point, they shall be deemed to have renounced it.

The executor remains in office for an indefinite duration. How long an executor remains in office depends on the time it takes to implement the provisions of the will. However, there is a time limit on how long the executor can hold the estate assets, being not more than one year after the death of the testator, unless extended (for a further year at most) by the court.

The law provides that the office is not remunerated, unless the testator has expressly made provision in his will for the executor to charge for his services from the estate. The right to reimbursement of expenses incurred in performing the role remains unaffected and are borne by the estate.

The executor must ensure that the testamentary dispositions are carried out properly.  The executor usually has the power to administer the assets and take possession of them, unless the testator has stated otherwise. The executor may perform any act required by their office, for example, pay the debts of the estate, fulfil obligations and legacies, and perform acts of extraordinary administration expressly authorised by the testator, etc. Where acts of extraordinary administration have not been expressly authorised by the testator or are not merely to be executed by will, the executor must request special authorisation from the court of the place where the succession is being heard, pursuant to section 747 of the Italian Code of Civil Procedure.

Pursuant to section 706 of the Italian Civil Code, the testator may also entrust the executor with the task of arranging the division of the estate after speaking with the heirs, without the need for the latter to enter into a further transaction among themselves. In this case, however, the executor must be a third party, and thus neither an heir nor a legatee. The executor shall then estimate the value of the assets, decide how they are to be divided among the heirs and, after considering the heirs’ wishes, determine the portions to which each heir is entitled, in accordance with any rules stipulated by the testator. They will then allocate the shares to the respective heirs by means of a division transaction, which will bring the status of the community of heirs to an end.

[1] Pursuant to section 23 para. 2 let. e) of Regulation (EU) No 650/2012, the law governing the succession also governs the powers of executors of wills.