When must a will be communicated to the court?

The notary must send to the clerk’s office of the court, within whose jurisdiction the succession has been opened, a free-paper copy of the minutes of the secret will and the public will.

In this article, we will analyze the communication obligations and the effects of failure or delay in communication.

Who and when must communicate the will to the court?

In addition to publishing the will, the notary must also communicate it to the court of the place where the succession has been opened. The communication is carried out by sending to the court clerk’s office a free-paper copy of the publication minutes or the public will.

The clerk’s office keeps a registry of wills that is publicly accessible. This constitutes a form of public notification. The will must also be communicated to the general registry of wills.
The publication gives interested parties the opportunity to know the existence and content of the testamentary act. However, this requirement to disclose the existence and content of the will is only partially fulfilled. The effect of this publication is not so much to bring the will “out of the drawer” but to terminate its secrecy: previously, the will was closed and unknown.

What are the consequences of failing to communicate or delaying the communication of the will to the court?

No deadline is established within which the notary must proceed with the communication, so it is only advisable to use means that guarantee proof of receipt, and it is believed that the transmission should occur with reasonable promptness, depending on the specific circumstances.

In case of failure or untimely communication, a claim for damages may be made, while the offense of omission of official acts would not be configured, since this concerns a form of public notification.
However, according to some criminal case law, a notary who deposits the publication minutes of the will late with the court clerk commits the offense of omission of official acts.

Copies of the minutes and the public will, handled by the clerk, must be collected in appropriate volumes and organized in a general alphabetical index. Anyone who requests it can consult these copies.

How is the will communicated to the heirs and legatees?

The notary who received a public will, as soon as they learn of the testator’s death, or in the case of a holographic or secret will, after the publication, communicates the existence of the will to the heirs and legatees whose domicile or residence they know.

The communication to the heirs and legatees aims to achieve direct knowledge of the will by the beneficiaries. However, the notary is not obliged to search for heirs and legatees whose residence or contact information is unknown.

If the professional fails or delays in fulfilling these duties, the interested parties may claim damages. This liability arises only towards those heirs or legatees whose domicile or residence is known to the notary.
The notary’s obligation arises not from the day of the testator’s death but from the moment the professional becomes aware of it. The professional could be subject to disciplinary sanctions in case of excessive negligence.

If you want to learn more about wills, you can contact Agenzia delle Successioni, which can best advise you on your situation.