Movable or Immovable? The Hidden Classification That Determines Your Estate
|:---|:---| | Italian villa (freehold) | Italy | Immovable | Italian law (unless Brussels IV choice) | | Italian apartment (leasehold) | Italy | Immovable | Italian law (unless Brussels IV choice) | | Italian land on trust for sale | Italy | Immovable (Re Berchtold) | Italian law — conversion doctrine irrelevant | | Italian mortgage (creditor's interest) | Italy | Immovable (Re Hoyles) | Italian law | | UK bank account | England (branch) | Movable | Law of deceased's domicile | | Italian bank account | Italy (branch) | Movable | Italian law (habitual residence) or law of domicile | | Shares in Italian S.r.l. | Italy (share register) | Movable | Italian law (habitual residence) or law of domicile | | Shares in UK Ltd company | England (share register) | Movable | Law of deceased's domicile | | Italian government bonds | Italy | Movable | Italian law (habitual residence) or law of domicile | | Debt owed by Italian debtor | Italy (debtor's residence) | Movable | Italian law (habitual residence) or law of domicile | | Life insurance policy (Italian insurer) | Italy (insurer's residence) | Movable | Italian law (habitual residence) or law of domicile | | Personal chattels in Italian villa | Italy (physical location) | Movable | Italian law (habitual residence) or law of domicile | | Cryptocurrency (owner in UK) | UK (domicile of owner) | Movable | Law of deceased's domicile | | Italian-flagged yacht | Italy (port of registration) | Movable | Potentially Italian law |
Why This Classification Matters: Three Worked Examples
Example 1: The Leasehold That Triggered Forced Heirship
A UK national holds a 99-year diritto di superficie (surface right — functionally equivalent to a leasehold) over an apartment in Rome. They die without making a Brussels IV choice of law. Their English solicitor, treating the interest as "personalty" (as it would be under English domestic law), distributes it to the surviving spouse under the terms of the English will.
The solicitor is wrong. In the conflict of laws, a leasehold interest in Italian land is an immovable. Italian law governs its succession. The children of the deceased are entitled to invoke their mandatory shares under the legittima. The surviving spouse may find themselves compelled to share the apartment with the children, or to pay a financial settlement to preserve sole occupancy.
Example 2: The Trust for Sale That Remained Immovable
A UK-resident settlor creates an English-law discretionary trust holding a portfolio of Italian properties. The trust deed provides that the properties should be sold at the trustee's discretion and the proceeds distributed. The settlor dies. The trust's English solicitors assume that because the properties are held "for sale," the beneficiaries' interests are interests in the proceeds (movable personalty), governed by English law.
Under Re Berchtold, this assumption is incorrect. The Italian properties remain immovables for conflict-of-laws purposes until they are actually sold. Until that point, Italian law governs all questions of succession, the mandatory rules of the Italian legittima apply, and the Italian forced heirship provisions override the discretionary powers of the English trustee to the extent required by Article 15 of the Hague Trusts Convention.
Example 3: The Bank Account at the Wrong Branch
A UK national residing in Italy maintains two accounts at HSBC — one at the London branch and one at the Milan branch. They die domiciled in Italy. The estate planner assumes both accounts are governed by a single law.
They are not. The London account is situated in England (movable, governed by the law of the deceased's domicile — Italy, under the lex domicilii rule for movable succession). The Milan account is situated in Italy (movable, also governed by Italian law as the law of habitual residence under Brussels IV). In this particular case, both are governed by Italian law, but the administrative procedure differs: the London account requires an English Grant of Representation; the Milan account is released under the Italian Dichiarazione di Successione.
If the deceased maintained a client at a Jersey branch, that account is situated in Jersey — potentially governed by a different succession law entirely, depending on the deceased's domicile.
The Decisive Moment: Death, Not Planning
A final critical point: the classification of property as movable or immovable is determined at the moment of death (23-009). This means that estate plans constructed during the testator's lifetime may become defective if the character of the asset changes before death.
If a testator sells Italian land and places the proceeds in an English bank account, the asset has moved from "Italian immovable" to "English movable" — a wholly different succession regime applies. Conversely, if liquid funds are used to purchase Italian land, an asset that was previously governed by the law of the deceased's domicile is now governed by the Italian lex situs.
Estate plans must therefore be reviewed whenever the asset portfolio undergoes material change, to ensure that the classification and governing law analysis remains correct.
Professional Legal Considerations
The movable/immovable classification is the foundational analysis that precedes every other question in cross-border estate planning. A will that makes a Brussels IV choice of law is effective only against assets whose governing law can be displaced by such a choice. An estate plan that assumes English succession law will apply globally is defective if it fails to account for Italian immovables governed by the lex situs.
Practitioners should conduct a comprehensive asset classification audit at the earliest stage of any cross-border planning engagement. This audit should map each asset to its situs, classify it as movable or immovable under the lex situs, and identify the governing succession law. Only once this audit is complete can a valid testamentary strategy be constructed.
Where the classification produces an unexpected result — such as a leasehold classified as immovable, or trust property that remains immovable despite a trust-for-sale clause — specific planning interventions are required to ensure that the testator's intentions are not defeated by the conflict of laws.
Ask the Succession Desk about Asset Classification
Authority Notes
The movable/immovable classification is stated as Rule 135 in Dicey, Morris & Collins on the Conflict of Laws (15th Edition), Chapter 23. The Italian PIL confirmation is found in Article 51 of Law 218/1995, which provides that in rem rights over movable and immovable property are governed by the lex situs. This means the Italian and English systems converge: both assign the classification exclusively to the law where the asset is situated. The situs rules are stated as Rule 136. Key authorities include Freke v Carbery (1873) (leaseholds as immovables), Re Berchtold [1923] 1 Ch. 192 (trust for sale property remains immovable), Re Hoyles [1911] 1 Ch. 179 (mortgagee's interest as immovable), Joachimson v Swiss Bank Corp [1921] 3 K.B. 110 (bank account situs), Brassard v Smith [1925] AC 371 (share situs), and Ion Science Ltd v Persons Unknown [2020] (cryptocurrency situs).
[!TIP] Authoritative Links: For more on the succession rules that apply once classification is complete, see our note on Forced Heirship in Italy 2026 or Brussels IV and Succession in Italy 2026.