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Which law actually governs your Italian estate — and why your Brazilian notary's advice may not be enough
Around 1.1 million Brazilians hold some form of Italian citizenship or descent link. Many own or will inherit Italian real estate. Since 1 January 2025, Italian heirs must calculate and self-report their own inheritance tax — filing their own calculation with the Italian Revenue Agency (Agenzia delle Entrate) within twelve months of the date of death. If the underlying will is defective or unrecognised under Italian law, those heirs file on an incorrect or defective basis. Common Reporting Standard cross-border data exchanges are already picking up discrepancies. The penalties arrive before the succession dispute is even resolved.
That is the immediate pressure. Here is the legal map you need before you call anyone.
Yes — but validity depends on more than your Brazilian notary's confirmation. Under EU Regulation 650/2012 (known informally as Brussels IV, binding throughout the EU including Italy since 17 August 2015), the formal validity of a foreign will used in Italy is assessed under Art. 27. That article allows a court or notary to recognise the will if it was formally valid under any of several laws, including the law of the place where it was made.
Brazil recognises three forms of will: the public will (testamento público), made before a Brazilian notary and two witnesses; the closed will (testamento cerrado); and the holographic will (testamento particular), which under Brazilian Civil Code Art. 1876 requires the testator's handwriting and at least three witnesses but no notary. The holographic form is entirely valid in Brazil. Under Art. 27 of Brussels IV, an Italian notary processing the inheritance declaration (dichiarazione di successione, the estate return due within twelve months of death) may accept it — but Italian notaries tend to scrutinise such documents closely, and in practice many reject private foreign wills that lack apostille documentation or leave witness identity unverifiable.
There is a further complication. Italy ratified the Hague Convention of 5 October 1961 on the Conflicts of Laws Relating to the Form of Testamentary Dispositions. Brazil has not. That means the generous multilateral framework for recognising foreign will forms does not bind Brazil when it looks at an Italian will. Each side applies its own rules unilaterally.
This is where planning becomes powerful — and risky if done carelessly.
Art. 22 of Brussels IV permits a testator who holds the nationality of an EU member state to elect, in their will, that the law of that nationality governs their entire succession. A Brazilian national who also holds Italian citizenship can therefore write a professio iuris — a formal declaration in the will choosing Italian law — and that election is recognised across the EU.
Why would anyone do this? Because the applicable law determines which forced shares apply. Under Italian law the forced heirship share (the legittima, sometimes called the quota di riserva, the minimum portion reserved by law for close relatives) is calculated as follows under the Italian Civil Code (codice civile): one child receives 50% of the net estate; two or more children share 66%; a surviving spouse receives 50%, or 25% if there are also children. Brazilian law is different but not dramatically so — the legítima under Brazilian Civil Code Art. 1846 is exactly 50% of the estate, reserved for herdeiros necessários (necessary heirs: children, parents and spouse). The real difference lies in how each system calculates the estate, treats gifts made during life, and handles what is sometimes called colação in Brazil and collazione in Italian law — the obligation to bring earlier gifts back into the estate calculation.
A Brazilian-Italian dual national dying habitually resident in Brazil but owning an apartment in Milan has a real choice. Without a professio iuris, Brussels IV Art. 21 applies: habitual residence at death governs the entire succession, meaning Brazilian law applies and the Italian apartment is governed by a Brazilian-law succession. With a professio iuris choosing Italian law, the Italian apartment falls under Italian law — including Italian forced heirship percentages and Italian rules on collazione.
The catch: that election must itself be formally valid. If the will is a Brazilian holographic will and the professio iuris is buried in handwritten text without clear witnesses, an Italian court could find the election formally defective under Art. 27, fall back to Art. 21, and apply Brazilian law anyway — exactly contrary to what the testator intended.
This is the question most clients do not think to ask until it is too late. The answer is: they can, even if your will was perfectly valid in Brazil and even if you never elected Italian law.
Art. 35 of Brussels IV contains a public-policy exception. An Italian court or notary can refuse to apply a provision of foreign law if the result would be manifestly contrary to Italian public policy (ordine pubblico). Italian courts have consistently treated the forced heirship share as a matter of public policy when the affected heir is habitually resident in Italy and the assets are Italian real estate.
Semel heres semper heres — once an heir, always an heir. The Latin principle encapsulates the Italian view that inheritance rights, once vested, cannot be extinguished by a choice-of-law clause. The author Hernando de Soto, writing on the economic importance of property rights, observed that formality of title matters most precisely when it is contested. In Italian succession, formality of forced-share rights works the same way: they survive almost every drafting manoeuvre.
Brazilian heirs instinctively expect an inventário — a judicial or extrajudicial probate process that transfers assets after death and distributes them through a defined procedure. Italy has no equivalent probate proceeding. Under Italian law, inheritance passes automatically to the heirs at the moment of death by operation of law. There is no court-supervised transfer. Instead, heirs must file the inheritance declaration within twelve months and may then use the notarial deed of sale (rogito notarile) or a declaration of acceptance to formalise their title.
Unlike in most common-law countries, and unlike Brazilian practice, an Italian heir does not receive assets after a process — they acquire them instantly, along with the debts. An heir who does nothing is still an heir under Italian law, unless they formally renounce within ten years (or within three months, if a creditor obtains a court order to force a decision). A Brazilian executor appointed in a Brazilian will has no automatic authority to deal with Italian assets: Italian law does not recognise the executor's title over Italian real property, and an Italian notary will not act on an executor's instruction without a separate court or notarial process in Italy.
Here is the structural problem that most online guides omit entirely. Brussels IV governs the Italian side: it applies EU conflict-of-law rules, allows a nationality election, and gives Italian courts the public-policy weapon. Brazil's Lei de Introdução às Normas do Direito Brasileiro (LINDB), specifically Art. 10, governs the Brazilian side: it says succession is governed by the law of the deceased's domicile at death. Brazil does not follow the nationality principle; it follows domicile.
This means the two systems can point in opposite directions simultaneously. A Brazilian-Italian dual national domiciled in Brazil at death: Italian courts apply Brussels IV and may apply Italian law (if there is a professio iuris) or Brazilian law (habitual residence default); Brazilian courts apply LINDB Art. 10 and apply Brazilian law regardless. There is no Italy-Brazil bilateral succession treaty to resolve the conflict. No multilateral instrument bridges the gap. Each system decides for itself, about the same estate.
The practical consequence: if Brazilian assets include assets that mirror Italian ones — shares in a company owning Italian property, for instance — a Brazilian court may distribute them under Brazilian law while an Italian notary simultaneously distributes the Italian apartment under Italian law. Forced heirship calculations may produce different results. An heir favoured under one system may be penalised under the other.
In a 2026 filing this means the self-assessed inheritance tax declaration in Italy could be based on a share that a Brazilian court later revises. The Italian Revenue Agency does not wait for Brazilian court proceedings to conclude.
Without a will, intestate succession (the successione legittima) applies. Under Brussels IV Art. 21, habitual residence governs — so Brazilian law applies as the default to the entire succession, including Italian assets. Under Brazilian Civil Code Art. 1829, the estate passes to descendants first, then ascendants, then the surviving spouse, then collateral relatives. The forced share rules still apply even on intestacy.
The Italian apartment does not automatically transfer. The Brazilian heirs must present their Brazilian court order or extrajudicial inventário in Italy. An Italian notary will require an apostilled copy of the Brazilian succession document, a sworn translation, a land registry search (visura catastale, the Italian property register search that confirms the deceased's ownership and any encumbrances), and confirmation that Italian mortgage and tax liabilities are cleared. The process typically takes between six and eighteen months once documents are assembled, and notarial fees are calculated on the declared value of the assets — for a property worth EUR 300,000, notarial and agency costs can reach EUR 6,000 to EUR 10,000 before tax is added.
In our files, the most common mistake is a Brazilian testamento público that contains a professio iuris choosing Italian law but was drafted without input from Italian counsel. The election is present; the intention is clear. But the will then disposes of assets in ways that violate the Italian forced heirship share — leaving one child less than the minimum 50% — and the Italian notary refuses to register the transfer pending a court resolution. The heirs have already self-assessed inheritance tax on the basis of what the will said. The Revenue Agency assessment and the succession dispute then run in parallel, each feeding the other. Resolving it requires Italian court proceedings that could take two to four years and cost several times more than a correctly drafted will would have done at the outset.
My Brazilian will was made before a notary. Does that guarantee it will be accepted in Italy?
Not automatically. A Brazilian public will is strong evidence of formal validity under Brussels IV Art. 27, but it still needs an apostille, a certified Italian translation, and scrutiny by the Italian notary handling the estate filing. If the will contains a law-choice clause or disposes of Italian property in ways that affect forced shares, additional legal analysis is required before the notary will act.
Can my children challenge my will in Italy even if it was valid in Brazil?
Yes. Italian children habitually resident in Italy can invoke the public-policy exception under Brussels IV Art. 35 to protect their forced heirship share under Italian law. This applies regardless of whether your will was notarised in Brazil, regardless of which law you chose, and regardless of what a Brazilian court has already decided about Brazilian assets. The Italian forced share is treated as a matter of fundamental Italian public policy.
I am a Brazilian-Italian dual national living in Brazil. Do I need an Italian will as well as a Brazilian one?
You do not strictly need two wills, but a single will that addresses both systems — drafted with counsel experienced in Italian law and coordinated with your Brazilian notary — is far safer than two wills drafted in isolation. The critical steps are: ensure any professio iuris meets both formal validity systems; verify the forced-heirship calculations under whichever law governs; and run a land registry search on Italian property to confirm its current status before the will is finalised.
HREFLANG BLOCK:
Editorial Team — Panato Law Firm Staff
