A trust is a particular juridical instrument by which a settler (disponente) can transfer a property (movable or immovable property) to a “trustee” who has to exercise and manage this right for a “beneficiary” (to whom the full property will be transferred with the termination of the trust) who has the “equitable right”. In civil law systems the beneficiary’s right is not a “diritto reale” but a “personal right” towards the “trustee”. If it is not foreseen by the constitutive contract, the property assets cannot be alienated by neither by the trustee nor by the beneficiary. Trust property cannot be foreclosed by the personal creditors of the trustee, the beneficiary or their heirs.
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Current situation
In Italy trusts can be used thanks to the adoption of the Hague Convention (1 July 1985), executive from 1 January 1992. The “trust interno” is a domestic trust but refers to a foreign regulation because as of August 2010 Italy does not have a complete and organic internal regulation on trust. Trusts can be used for various aims: administration, transfer of family business assets, transfer of goods for charity purposes, protection of patrimony, etc. The main advantages are the flexibility of its use and its economic convenience compared to Italian traditional juridical instruments. Nevertheless, they have not had a widespread application in Italy mainly because of the scarce knowledge of its functioning and its potentiality.
Proposed legislation
Italy has proposed its own regulation on trust (fiducia). The Italian Government has been delegated by the community law 2010 (bill/ legge comunitaria) to adopt a specific regulation on trusts (fiducia) within the Italian juridical system (title II art. 11). The “disegno di legge n. 2284/2010” (bill n. 2284/2010) presented by the Ministry of Justice (presented on July 2010 but not yet examined) charges the Government to modify the civil code as concerns “trusts” (fiducia) and the particular security contract.
The proposed Italian regulation on trust (fiducia) is inspired by the French “fiducie” which extended (ordinance nº 2009-112 2009) to individuals and corporations excluded from the payment of company taxes, the capacity to constitute a “trust” (fiducie), and allowed attorneys to become trustees.