Inheritance law is the set of rules on the basis of which it can be determined to whom possessions and debts belong after death. This is also referred to as the law of succession. According to the law, the succession takes place either under the rules of the law (intestate succession law) or under a will.
Inheritance under the law of intestate succession
When a person dies without making a will, the law provides that the heirs are:
- the spouse (or registered partner) and children of the deceased; if there are none and none of them has living descendants:
- the deceased's parents and brothers and/or sisters; if there are none and none of them has living descendants:
- the grandparents of the deceased; if there are none and none of them has living descendants:
- the Dutch state.
When one of the above-mentioned persons has predeceased and he himself has left one or more children, those children come under the law in the place of the predeceased heir. This is called substitution.
For a detailed explanation of the legal regulations for parents and children, see the brochure "Parents and children: the law of succession".
Succession by will
When someone has made a will while alive, that will determines who the deceased's heirs are. Wills are registered in the Central Register of Wills. That register records that someone has made a will, and which notary has custody of the deed. The contents of the will are not known to the registry. After death, it is possible to check with this register to see if there is a will.
The last will made by the deceased is valid, even if circumstances have changed over time. It is therefore important to regularly check whether the contents of the will are still in line with the current (personal and financial) situation and the (tax) laws applicable at that time.
Accepting or rejecting an inheritance
If the law or a will states that someone is an heir, this does not necessarily mean that he is actually an heir. In fact, it is ultimately up to a person to decide whether or not they want to be an heir.
The law offers an heir the following options:
- pure acceptance of an inheritance, which entitles the heir to (his/her share in) all of the deceased's possessions, but is also liable for (his/her share in) all of the deceased's debts;
- rejecting an inheritance, as a result of which the heir receives nothing, but is also not liable for the debts. In the case of rejection, it is often the case that the descendants of the rejecting heir, become heirs, and they too must again make a choice;
- accepting an inheritance on a beneficial basis, which means that the heir does not have to contribute out of his own pocket if it turns out that there are more debts than assets.
For a detailed explanation of these various options, please see the brochure "To accept or not to accept an inheritance? Beneficial acceptance and legal liquidation".
Bequests
In a will it can be included that certain items and/or a fixed amount of money is left to a certain (legal) person. Such a provision as well as those items and/or that amount of money are called a bequest. The person to whom the bequest accrues is called the legatee. The legatee has the right to accept or reject a bequest. The legatee is not an heir, and is therefore not liable for any debts of the deceased.
The settlement of an estate
In order to settle the estate, it will need to be clear who the deceased's heirs are.
Banks and other institutions usually require a certificate of inheritance before responding to requests from heirs. A certificate of inheritance is a statement by a notary public that establishes, among other things, that someone has died, who, based on any will and research in the civil registry and the law, are the heirs, and who are authorized to act. The presentation of a will together with a certificate of death is not sufficient, because an heir named in a will has the right to accept or reject the inheritance (beneficently). The notary will therefore approach all heirs and ask them to make their choice known.
Power of attorney
When there are several heirs, they are only jointly authorized to dispose of the estate. In practice, this means that they can only sell the contents or issue payment orders jointly. To avoid this, heirs can choose to grant a power of attorney to one or more of them or to a third party. This ensures that one person can settle the estate.
Executor
An executor may be appointed in a will. The duties and powers of the executor may be defined in the will. For example, an executor can only be authorized to arrange the funeral, but it is also possible to leave the entire settlement of the estate to the executor.
An executor may accept or not accept his appointment. If the appointment is accepted, a declaration of execution can be issued by the notary. This declaration records that someone has died, that an executor has been appointed and has accepted this appointment, and what the powers of that executor are. Because less notarial research precedes the creation of the declaration of executor than the creation of the certificate of inheritance, the declaration of executor can be issued fairly quickly. And that can be very convenient when quick action is needed. For more information on the duties and powers of an executor, see the brochure "The Executor Testamentary."
When someone acquires something through the death of someone who at the time of his death lived or was supposed to live in the Netherlands, inheritance tax is payable (subject to any exemptions) by the acquirer. The amount of tax due depends on the value of what is acquired and the relationship between the deceased and the acquirer. The acquirers are divided into three groups, namely the group of partners and children, the group of grandchildren and the group of other acquirers. Different rates and different exemptions apply to these groups.
An inheritance tax return must be filed by the heirs (or the executor) within eight months of death. If one does not receive a tax return form, one is required to request one from the tax authorities themselves.
mmeeuwissen@kooijmanautar.nl
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