Public will: what it is, how it works at a notary’s office, advantages and costs

A public will is a will drawn up by a notary in the presence of two witnesses, through which a person may dispose of their assets, or part thereof, upon their death. This specific type of will is characterised by the fact that the testator verbally declares their wishes to the public official, who then drafts the will in writing in the correct legal form, ensuring the highest level of formal and substantive certainty. Unlike a holographic will, which is written entirely in the testator’s own hand, a public will provides immediate certainty as to the origin of the declarations and the date of receipt, offering complete protection against the risks of loss, theft or alteration.

Planning your estate by drawing up a public will enables you to protect your loved ones and distribute your assets in full compliance with the law, whilst minimising the risk of future family disputes. The following sections will examine the essential requirements, the necessary formalities, the costs involved, and how the document is managed both during your lifetime and after the opening of the succession.

What is a public will and what are the requirements for its validity?

To fully understand what a public will is, it is necessary to examine the strict formalities imposed by the Civil Code to ensure the authenticity and inviolability of a person’s last wishes. A public will is drawn up by a notary, who receives the instructions in their capacity as a public official, in the presence of witnesses, and confers upon the document the status of a public deed, which constitutes conclusive evidence of what took place before them, unless a complaint of forgery is lodged.

Drawing up a will involves a rigorous procedure comprising the following stages:

• declaration by the testator: the testator declares their last wishes before the notary and the witnesses, expressing them orally of their own free will and in full knowledge of the facts;
• drafting in writing: after listening to the testator’s wishes, the notary translates the testator’s words into clear and effective legal clauses, and proceeds to draft the public will;
• reading of the will: the professional reads the will to the testator in the presence of witnesses, in order to verify that the contents of the will fully reflect the testator’s true wishes;
• Signature: the document must be signed by the testator, the witnesses and the notary. If the testator is unable to sign or has serious difficulty in doing so, the notary must state the reason, including a specific notarial note to that effect.

The validity of a will is closely linked to compliance with these steps. The law provides that a will is void if the testator’s declarations have not been drawn up in writing by the notary, or if the will has not been signed by the testator or the notary, unless the testator is unable to sign and the formalities laid down by law have been observed. The document must also state the place and date of receipt and the time of signing, and must also be signed by the witnesses. Failure to comply with these additional formalities does not, however, render the will void, but may result in its annulment upon application by any interested party.

The key differences between a public will, a holographic will and a secret will

The choice of the most suitable form of will for managing one’s estate depends on the complexity of the assets and the testator’s specific needs regarding confidentiality or protection. Italian law provides for three main standard forms, each characterised by specific procedures for drawing up and storing the will.

Feature	Holographic Will	Public Will	Secret Will
Editorial team	Written entirely in the testator’s own hand	Received by the notary, who sets out in writing the wishes expressed by the testator and reads them out in the presence of the witnesses	A document drawn up by the testator or by a third party, including by mechanical means, and signed in accordance with the provisions of Article 604 of the Civil Code; delivered in person to the notary in a sealed envelope
Presence of Witnesses	Not specified	Compulsory (at least two witnesses)	Mandatory at the time of delivery
Nature of the act	Private agreement	Public document	Compound document: private will and notarial certificate of receipt constituting a public document
Risk of loss	High risk if held privately; low risk if deposited with a notary	Void. The original is kept by the notary or, where applicable, by the Notarial Register; following the testator’s death, a copy is forwarded to the competent court. Very low risk of loss.	Void. Kept under seal by the notary or, where applicable, by the Notarial Registry; after the testator’s death, it is opened and published, and a copy of the record is forwarded to the court. The risk of loss is very low, unless the testator withdraws it.
Initial cost	No costs are involved, apart from any consultancy fees or notarial deposit	Notary’s fees and applicable expenses, taxes and duties	Notary’s fees and applicable expenses, taxes and duties

A holographic will must be written in full, dated and signed in the testator’s own hand. Although it is a quick and inexpensive option, it has significant vulnerabilities: it can easily be lost, destroyed by interested third parties or challenged on the grounds of defects relating to the lack of a handwritten signature or the interpretation of the text.

These risks can be significantly reduced by placing the holographic will in trust with a notary. In this case, the document retains its status as a holographic will, but is held by the notary, who ensures its safekeeping and, following the testator’s death, arranges for its publication. Fiduciary deposit does not remedy any formal or substantive defects in the will, but it limits the risk of loss, destruction or concealment and makes it easier to locate; furthermore, with the testator’s consent, the deposit may be recorded in the Voluntary Register of Holographic Wills established by the National Council of Notaries.

The notary may also provide preliminary advice on the drafting of a holographic will to be held in trust, helping the testator to formulate clear, consistent provisions that comply with the law. However, the will must be drawn up personally by the testator and must be written in full, dated and signed entirely in their own hand: the notary’s advisory role does not, therefore, alter the holographic nature of the will.

A secret will, on the other hand, combines the advantages of a holographic will’s confidentiality with the security of notarial custody, but involves particularly complex procedures for its drafting and delivery.

A public will drawn up by a notary eliminates the risk of the will being lost and ensures that the provisions comply with the relevant legal requirements, such as those safeguarding the statutory share to which the closest relatives are entitled.

The advantages of a public will in estate planning

The advantages of a public will become clear when one examines the validity of the document in the event of a dispute between the heirs. Drawing up a will with the assistance of a professional drastically reduces the risk that the provisions may be declared null and void or voidable on the grounds of formal defects or ambiguity in the language used.

In summary, the main advantages of a public will are:

• pre-drafting technical advice: the notary guides the testator in the distribution of assets, explaining the legal restrictions and the rights of compulsory heirs, and preventing the inclusion of invalid clauses;
• guaranteed integrity and safekeeping: the document remains on file at the practice, eliminating any possibility of concealment or falsification;
• greater resistance to challenge: the presence of the notary, who is required to visually verify the settlor’s identity and full legal capacity, makes it extremely difficult for anyone to allege the settlor’s legal incapacity, unless a complex action for forgery is brought.

It should be noted, however, that the notary’s assessment of the testator’s capacity is not covered by the privileged authenticity of the public deed: any natural incapacity may be challenged in court using any form of evidence, without the need to bring an action for forgery. The public will and any specialist certification do, however, make such a challenge more complex in terms of evidence, as they allow the testator’s condition and intentions to be documented in detail at the precise moment the deed was drawn up.

This instrument is particularly recommended in cases involving complex estates, blended families (with children from different relationships) or when the intention is to allocate a portion of one’s assets to charitable causes, ensuring that the testator’s wishes are carried out precisely and without dispute.

Special cases: disability, physical limitations and the will of a mute person

The law provides special protection and guaranteed access to public succession for all those with physical or sensory impairments, or who are unable to sign. In such cases, the involvement of a notary is often the only suitable means of formally recording a person’s last wishes.

In the case of a public will requested by a person who is unable to sign – whether due to illiteracy or serious physical impairment – the testator must declare the reason for this impediment to the notary, and the notary must make explicit mention of it in the deed. The law provides that, under certain circumstances – such as in the case of a will drawn up for a mute, a deaf person or a deaf-mute – the presence of an interpreter is mandatory; and where the testator is unable to read, the number of witnesses must be increased from two to four, thereby ensuring that the testator’s wishes are communicated in a transparent and documented manner.

The notary includes in the deed the declaration of impediment made by the testator. The law stipulates that, under certain conditions – such as in the case of a will drawn up by a mute, a deaf person or a deaf-mute – the presence of an interpreter or an increase in the number of witnesses (from two to four) is mandatory, thereby ensuring that the expression of the testator’s wishes takes place in a transparent, documented and indisputable manner. The notary’s physical presence and active listening overcome any physical or sensory barriers, translating the expressed wishes into a perfectly valid deed.

Filing of the document and operation of the General Register of Wills

Whilst the testator is alive, the notary shall keep the original of the public will in the strictest confidence. The contents of the document may not be disclosed to third parties, nor may anyone be permitted to inspect or read it, or be issued with copies, extracts or certificates thereof, except to the testator himself or to a person holding a special power of attorney in authentic form. Potential heirs and close family members cannot therefore obtain information about the contents of the will whilst the testator is still alive.

The Italian system ensures permanent institutional traceability through the following steps:

1. Entry in the Register: within ten days of receiving the will, the notary shall apply for its entry in the General Register of Wills, maintained by the Ministry of Justice – Central Office of Notarial Archives. The Register contains the information necessary to identify and locate the document, but not the content of the testamentary dispositions. Within the same time limit, a copy of the public will, sealed and stamped, is forwarded to the district Notarial Archive;
2. confidentiality of the contents: the Register holds only the information necessary to identify the existence, nature and location of the document, without disclosing its contents. Information contained in the Register may be requested by interested parties only after the testator’s death;
3. Transfer to the Archives: should the notary cease practising, including upon retirement, or move to another notarial district, the original will and the other deeds, registers and records held by the notary are deposited with the relevant Notarial Archive, to ensure their long-term institutional preservation.

What happens after the testator’s death: publication and execution

Immediately following the testator’s death, once the notary has been informed and suitable proof of death has been provided, the will ceases to be confidential and enters into force. Upon learning of the testator’s death, the notary holding the public will in custody draws up the record of its transfer from the file of last wills and testaments to that of inter vivos deeds, thereby formally making the will known and enforceable.

Unlike a holographic will and a secret will, a public will is not subject to formal publication. The notary also ensures that a copy is sent to the registry of the court within whose jurisdiction the succession has been opened.

Heirs and legatees may request a certified copy of the will in order to initiate the probate proceedings, submit the declaration of succession, apply – together with the other necessary documents – for the release of bank accounts, and complete the transfer of ownership of properties.

The notary also has the statutory duty to notify the heirs and legatees of whom he or she knows the domicile or residence – even if they are located abroad – of the existence of the will, thereby ensuring that they are informed of its provisions in a timely manner and reducing the risk that the testator’s wishes will remain unfulfilled.

The costs of a public will: fees and taxes

The cost of a public will comprises several components, including the notary’s professional fee for advice and drafting, a fixed-rate registration tax, stamp duty, and administrative and national treasury charges.

The total cost of drawing up a public will is not fixed, but depends on the complexity of the provisions to be included (such as the provision of numerous bequests, the establishment of trusts or a clause appointing an executor). The costs of the deed are paid directly by the testator at the time of signing at the solicitors’ office, and are borne entirely by the testator, so as not to leave any debt or financial obligation to the heirs in relation to the initial drafting of the document. To plan the process correctly, it is always advisable to contact the solicitors’ office directly to obtain a personalised quote based on your specific requirements.

Amendment and revocation: a will is a revocable document

A key principle of Italian inheritance law stipulates that a will is a document that may be revoked or amended right up until the testator’s final breath. The testator may not, under any circumstances, waive the right to revoke a will or amend its provisions, and any clause to the contrary is devoid of any legal effect.

One may amend one’s decisions by drawing up a new will, which may take a different form from the previous one (for example, a public will may be validly amended or revoked by a subsequent holographic will, and vice versa). Revocation may be express, if the new document explicitly states that it annuls the previous provisions in whole or in part, or tacit, for example where the clauses of the new document are objectively incompatible with those contained in the previously drawn-up document.

How to prepare for the procedure: a checklist of the necessary documents

Before making an appointment to draw up a public will, it is extremely helpful to gather, in advance, your personal details and information regarding the composition of your estate. This enables the notary to quickly assess your family situation, verify that the reserved shares for compulsory heirs have been respected, and draft the clauses in a clear and legally watertight manner.

To assist with this preparatory process, the practice has drawn up a supplementary summary document. You can save and easily access this resource in PDF format to check, step by step, all the necessary details before your appointment at the practice.

FAQ – Frequently asked questions about public wills