Summary of the contents of the will.
The following numbering is the same as the numbering mentioned in the will.
I. Revocation
All wills and codicils already made by you are revoked and the provisions of those deeds are consequently no longer in force.
If you wish to maintain a codicil already made, this must be explicitly stated in the will.
II. Choice of law
This provision has the content of a "choice of law"; the choice is made for the application of Dutch law both with regard to this will and to the succession and the settlement of the estate.
Such a choice is especially important if at the time of death one is domiciled outside the Netherlands and/or at that time has assets outside the Netherlands.
The surviving spouse and the children are appointed heirs, each for an equal share. If a child is predeceased and also leaves children, these (grand)children take the place of their deceased father/mother (= substitution).
In case a child is pre-deceased and does not leave any children himself, his inheritance will be divided among the other heirs (= increase).
IV. Legal distribution
According to the law, the surviving spouse automatically becomes the sole beneficiary of the estate. He or she can independently dispose of the estate without the cooperation of the children.
The children receive a claim against the surviving spouse in the amount of their normal inheritance share. This is called the legal distribution. This legal distribution is confirmed in the will. For a numerical example of how the legal distribution works, see section 3 of this note.
The will deviates from the statutory distribution as governed by law in a number of ways.
A. Interest payment
According to the law, the children's claim is increased annually "on paper" by a percentage corresponding to that of the legal interest rate, to the extent that this percentage exceeds six. For example, if the legal interest rate is 7%, the interest addition is 1%; if the legal interest rate is 5%, for example, there is no interest addition.
The interest need not actually be paid annually by the surviving spouse, so the surviving spouse is not affected by the growing interest debt.
However, it is in the best interest of the children that reasonable interest be added. When the interest comes to fruition (in principle, at the death of the survivor), the children do not receive this interest as an inheritance but as repayment of a debt. Thus, they do not owe inheritance tax on this.
Under current law, they do not owe any income tax on this either. However, the amount paid out does constitute capital that is subject to the capital gains tax (box 3). The addition of interest therefore leads to a tax advantage for the heirs. For a numerical elaboration, see point 3 of this explanation.
The will therefore provides that in principle the statutory interest is added. This was 7% as of January 1, 2024, but 6% (again) as of January 1, 2025. Moreover, the heirs are free to make other arrangements in due course.
B. Recoverability
According to the law, the children can only claim their claim upon the death of the surviving partner, in case the surviving partner is declared bankrupt or is subject to debt restructuring.
The will extends the grounds for claimability.
According to the will, the children can only claim the claims, i.e., the children's inheritance shares need only be paid (by the surviving parent)
- when the surviving parent dies;
- if the latter gets married or enters into a registered partnership or cohabits;
- if the surviving parent is granted a suspension of payments, enters into a state of legal debt restructuring or goes bankrupt;
- if the surviving spouse is placed under guardianship or the surviving spouse's assets are placed under administration. However, if the guardianship or administration is instituted due to a mental disorder of the surviving partner, the claims are not due and payable;
- if the survivor is permanently staying in a nursing home and by paying off the debt to the children a lower co-payment for the Long-Term Care Act (formerly AWBZ) would become due, or a claim for social assistance could be made.
Pursuant to the Long-Term Care Act (formerly AWBZ), when staying in a nursing home, the person in question must pay a co-payment towards the cost of the stay. This co-payment depends not only on income, but also on assets.
By providing that the children's claims become payable upon admission to a nursing home, it is possible -under conditions- to achieve that the co-payment is reduced.
C. The claims are not claimable in case of remarriage, cohabitation, entering into a registered partnership (B.2) and permanent residence in nursing home (B.5), if the surviving parent provides security for the satisfaction of the claim.
Providing security can prevent everything from possibly being passed on to the new spouse or partner in the future. This security can be provided, for example, by mortgage or bank guarantee.
D. Only on the death of the surviving parent or in the case reported above at B.3. can the child demand that, in addition to the amount of the inheritance share, the interest due up to that time be paid.
In the other cases of claimability, the interest shall not be made payable.
E. The surviving parent can decide for himself/herself whether to proceed with the distribution of the inheritance shares and/or payment of interest anyway.
If distribution of the inheritance shares takes place, each of the children should receive an equal amount, unless all heirs determine otherwise by mutual agreement.
F. In the event that the surviving parent does distribute all or part of the children's inheritance shares to them, such distribution shall be considered payment of interest and not payment of the claim due.
This ensures that interest addition on the (remainder of) the claim remains possible.
However, the heirs may agree that this payment will be considered satisfaction of the claim.
G. A child could decide to sell and transfer his claim to another person. If that other person is a "third party," the result is that the surviving parent is faced with a person other than the child; this can lead to particularly unpleasant consequences if a situation arises where the claim becomes due and payable.
To avoid all these problems, a prohibition on transfer to a third party has been included unless all the heirs agree to a transfer.
V. Property outside the Netherlands
Many countries do not have the legal distribution as we have incorporated it into law in the Netherlands. Since Aug. 17, 2015, the European Regulation on Succession has been in force. But some European countries are not parties to this treaty (United Kingdom, Ireland and Denmark), and the treaty does not apply outside Europe.
If the estate would include, for example, a house in England, the legal distribution does not work for this house. Therefore, the will contains a provision for assets outside the Netherlands.
It is advisable - if you indeed have assets outside the Netherlands - to discuss this with your notary so that it can be examined whether this arrangement in the will is sufficient.
VI. Description of the estate
An inventory of the estate is only required by law if the surviving partner or a child requests it, or if the surviving partner or a child does not have free control over his or her assets. The latter is the case if a child is a minor or an heir is under guardianship or his or her assets are under administration.
The will stipulates that not only in the above situations but always an estate description must be drawn up.
The description is necessary to determine the composition and value of the estate and the extent of the children's claims. The description can be used in due course upon the death of the survivor, among other things, as evidence against the tax authorities in connection with the survivor's debt incurred with respect to interest (see IV.A).
If the heirs include persons who do not have free control over their assets, the description will usually be made by notarial deed, but it is not necessary. However, the court may determine that the description should be recorded in a notarial deed.
VII. End of marriage/registered partnership
When divorce or legal separation proceedings have been initiated, when a legal separation has been pronounced or an agreement to terminate a registered partnership has been signed, the surviving spouse/partner is excluded as an heir. If the divorce or dissolution of the registered partnership is a fact (which is the case when it is registered in the registers of the Civil Registry), the spouse/partner is no longer an heir anyway and the will remains ineffective.
VIII. Exclusion clause
Often, a will provides that what is inherited falls outside of a general or limited community of property or outside of some sort of settlement between an heir and his/her spouse or partner. If a marriage or cohabitation of, say, the child is going well, the spouse/partner will still notice the positive effect of what has been inherited. Especially if a relationship is going badly, it may be important that only one's own heir obtains and not the (soon-to-be ex-spouse or partner.
IX. Exemption from contribution
This provision relates to what children have already been gifted by parents. As a result of this provision, children can no longer create problems among themselves by demanding a settlement from a brother or sister because that brother or sister may have received more from father or mother than another.
X. Executor appointment
The surviving parent is appointed executor, that is, the one who will take care of the settlement of the estate. However, this executor appointment expires if the death takes place during the proceedings for divorce/divorce/dissolution of registered partnership (see VII).
2. Consequences of this will
The most important consequence of the legal distribution confirmed in this will is that the surviving spouse becomes the sole beneficiary of the estate by operation of law.
The children receive only a claim in money against the surviving partner.
This will optimizes the legal arrangement by adjusting the interest clause (IV.A) and claiming the claimability grounds (IV.B).
Because of the interest clause (IV.A), the children's claim "grows."
Also, there is a tax advantage. This advantage lies in the fact that the interest due to the children for the period from the death of one of the parents until the death of the surviving parent is received free of inheritance tax by the children upon the death of the surviving parent.
Under current law, no income tax is also due on this interest.
Under the 2001 Income Tax Act, the claims of children on the surviving parent and the debts of the surviving parent to the children are placed in box 3 if they arise from the legal distribution or constructions similar in substance.
The debts owed by the surviving parent to the children pursuant to this will and the debts owed by the children to the surviving parent are "defiscalized," so to speak. This means that the surviving parent's debt cannot be deducted by him from his assets and that the children's claim does not have to be added by them to their assets.
As a result, the children are in principle not liable for capital gains tax (pursuant to box 3) on the claim.
Undoing
There are conceivable situations in which the statutory distribution is less desirable. This could be the case if the surviving partner is already in a nursing home.
Also if, for example, the house belonging to the estate should go to one of the children. In that situation, transfer tax can be saved by undoing the legal distribution. In that case, the surviving and the children become jointly entitled to the estate and the house can be allocated to one of the children free of transfer tax.
The legal distribution cannot be undone by the children; this is a power of the surviving spouse. A partial undoing is not possible; the undoing of the legal distribution applies to the entire estate.
The undoing is done by means of a declaration by the surviving spouse which must be recorded in a notarial deed.
However, this undoing must take place within three months of the death.
It is therefore important that the surviving spouse consults with the notary as soon as possible after the death whether or not the undoing of the estate is desirable in view of possible tax benefits.
Wills
Through the legal distribution, the surviving spouse has become the sole beneficiary. The children only have a claim.
Under the current law, the children have the ability to protect their rights in certain situations.
They are given the power to secure goods, for example goods with an affective value, or to obtain security for the satisfaction of their claim. There is nothing in the will about this which means that the will rights listed below can be exercised by the children without restriction.
These situations are as follows:
- The surviving partner declares the intention to remarry/enter into a registered partnership.
Assets from the estate of the first-deceased spouse could "flow away" to the new spouse of the survivor.
Therefore, in this case, a child can demand that assets worth the size of his claim be transferred to him. Incidentally, the surviving spouse does have the option of retaining the usufruct of those assets. The child then has bare ownership. - The remarried parent dies.
At that moment, the child's claim against the surviving parent becomes due and payable and the child can demand satisfaction of this claim by the surviving parent's new spouse. - Suppose a child's parents are divorced and both parents are remarried.
In case one parent dies, the child gets a claim against his step-parent. The child can then demand that assets worth the size of his claim be transferred to him. The stepparent has the option to retain usufruct of those assets. The child then has bare ownership. - The stepparent dies.
In this case, the claim that the child had against the stepparent becomes due and payable and the child can demand satisfaction of this claim by the heirs of the stepparent.
Should you wish to limit these will rights, this should be explicitly stated in the will.
3. Example of financial and tax consequences of the will
A couple is married in community of property. In this community of property the assets of both spouses are common. The capital at the time of death is € 300,000.00. There are two children. The husband dies and has confirmed by will the legal distribution and made the changes to it as mentioned above.
The wife is entitled to half = € 150,000.00 in the general community of property by virtue of matrimonial property law.
In the estate of € 150,000.00 the woman is entitled for one/third part = € 50,000.00
her share in the whole is thus € 200,000.00
Each of the children is entitled for one/third part in the estate thus for an amount of € 50,000.00.
Everything is now allocated to the survivor for a value of € 300,000.00
the widow receives debts to the children of € 50,000.00 per child, so a total of € 100,000.00.
So on balance she receives a value of € 200,000.00.
Now suppose that the surviving spouse would live 10 years longer than the first spouse and the interest would be for example 6% compounded (interest over interest), then the debt would have grown to € 89,542.00 per child, a total of € 179,084.00.
Assuming that the property of the surviving parent would still be worth the same, this means that after ten years the surviving parent would have € 300,000.00 in benefits
the debt to the children has grown to € 179,084.00.
which results in the surviving parent having a net worth of € 120,916.00.
If the surviving parent then dies, does not remarry and has not made a further will, the children would be entitled to half of this balance of assets, i.e. € 60,458.00 per child. On that amount, at current rates, a child would have to pay inheritance tax in the amount of € 3,496.00 (figures 2025).
Had the interest rule not been included, a value of € 100,000.00 would have been acquired by each of the two children. On an amount of € 100,000.00 an amount of € 7,451.00 (2025 figures) must be paid in inheritance tax. In this way an amount of
€ 3,955.00 thus € 7,910.00 for the entire estate.
In the event that the surviving parent does not die after these ten years but within this period € 130.000,00 has been deducted from his/her estate, this means that his/her estate then amounts to
amounts to: € 170.000,00
however reduced by the inheritance parts of the children and the interest "credited" thereon, amounting to € 179,084.00
so that the capital of the surviving parent on balance amounts to -/- 9,084.00 negative.
4. Additional arrangements that can also be included in the will
In the will you can appoint a guardian over the children in case both parents die while the children are still minors.
It is also possible to appoint two guardians, who exercise guardianship jointly. It should be kept in mind that the law attaches different consequences to the appointment of one guardian or a guardian (married) couple. Thus the guardian couple has the duty and the right to raise and take care of the minor themselves. A guardian alone can leave the care and upbringing to another. A guardian couple has a maintenance obligation to the child. A guardian alone is not.
Once a child comes of age (18 years), a child can independently dispose of his inheritance share. If the value of this inheritance is not so great, there will be little objection to this, but with larger assets it is questionable whether a child will be able to handle his inherited assets wisely. In the latter case, an administrator could be appointed by will; this is a person or an institution (for example, a bank) that manages the assets inherited by a child. The trustee can be appointed until the child reaches a certain age, for example, until the age of 21 or 25.
During the minority, the surviving parent or guardian has custody of the inherited assets. You have the option of appointing someone other than the surviving parent or guardian as administrator.
See attached separate explanation.
4. Death simultaneously with or after spouse without leaving descendants
If spouses die (shortly) after each other without leaving children, the spouse who dies last will inherit everything from the first dying spouse and then, upon the death of the other spouse, only the immediate family members (parents, brothers and sisters) of this last dying spouse will inherit. This may be perceived as undesirable and it can be avoided by including in the will an arrangement providing that if the spouses die at the same time with or after each other without leaving descendants, the estate will be divided in half and one half of the estate will go to the family of one spouse and the other half to the family of the other spouse. You may also choose to designate persons other than family members or exclude persons in the family in such a case.
5. Usufruct will
In some cases it may be useful not to opt for the legal distribution but for an usufruct will.
For these cases one can think of the situation that it is expected that a (particularly) large capital will be left or the situation that the person who makes a will is married in a second marriage and also leaves children from a first marriage.
If you would like more information on this subject, please contact our office at any time.
Additional charges
In order to provide you with the fullest information possible, please note that the inclusion of additional arrangements such as a guardianship arrangement or an arrangement for the situation when you die at the same time as or after each other will incur additional costs above the basic fee.
Although the utmost care has been taken in preparing these notes, the possibility exists that certain information may be incomplete or outdated or no longer (fully) accurate over time.
Periodic consultation with a notary's office is therefore desirable.
pkooijman@kooijmanautar.nl
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