The consular office performs some notarial functions provided for by the Italian law – exclusively with regard to Italian citizens who are abroad permanently or temporarily. These functions are essentially receiving public deeds (powers of attorney, wills), notarial acts, affidavits, authentications and signatures affixed to private deeds.
There are, however, some differences between consular competence and powers in notarial matters and those attributed to notaries practising in Italy, which are essentially linked to the different position of the Head of the Consular Representation, who is a State official, and that of the notary public, who is a freelance professional.
- the notary public may also be called upon to serve as the client’s legal adviser; he may therefore gather information on a person’s solvency or serve as a mediator in a transaction, or advise the client on family or financial relations. The consular Authority may not perform similar activities. Its advice, where requested, shall be limited to the legal field, with particular regard to the validity of the deeds it is asked to receive. Its assistance shall be limited to the legality of the deeds proposed and not to their economic utility and benefit.
- The notary public may sometimes be the client’s agent with respect to the publicity, performance and fulfilment of formalities relating to the deeds received by him / her. No such activity may, instead, be carried out by the Head of the Consular Representation.
- While the notary public is entitled to a fee, all consular acts and deeds are subject only to the fee indicated in the Consular Fee Schedule.
Italian citizens abroad may, alternatively, formalise the deed with a notary public officially accredited in the country of residence. Later, if the country has acceded to the Hague Convention of 1961 abolishing the Requirement of Legalisation for Foreign Public Documents, they shall arrange to have the “apostille” affixed to the document by the competent Authority in the country of residence. If the country has not acceded to the aforementioned Convention, they shall have the notary public signature legalised by the Italian Consular Representation (see section Translation and legalisation of documents).
The notarial services most frequently requested from a Consular Office are the following:
- powers of attorney;
- public deeds;
- authentication activities.
In implementing Article 28 of Legislative Decree 71/2011, as of January 1, 2012, the Decree of the Minister for Foreign Affairs of October 31, 2011 limits the provision of notarial services by consular offices based in Austria, Belgium, France, Germany and Latvia.
“As of August 1, 2021, the Decree of the Minister for Foreign Affairs of June 16, 2021 also limits the provision of notarial services by consular offices based in the Republic of San Marino and the Principality of Monaco and abolishes the notarial functions of the consular office of the Italian Embassy to the Holy See”.
This choice is based, firstly, on the existence of bilateral or multilateral Conventions that have abolished the need for legalisation or apostille for deeds coming from these countries and, secondly, on the fact that the Notaries’ associations existing in these countries have joined the International Union of Notaries (U.I.N.L.), a factor deemed appropriate to guarantee the presence of adequate notarial services locally.
For the deeds to be effective in Italy, they shall anyway be translated.
It is envisaged that the Head of the Consular Office may in any case continue to receive – at the request of Italian citizens – public, secret or international wills.
Subject to checking the objective and documented impossibility for the compatriot to address to a local notary public, the Head of the Consular Office may also receive necessary and urgent deeds, when the delay could be prejudicial to the citizen.