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Wills and probate

Succession rules

What rules and restrictions (if any) govern the disposition of and succession to an individual’s property and assets in your jurisdiction?

Subject to some restrictions (eg, with regard to the family dwelling), a person is in principle free to dispose of all or part of their assets during their lifetime or in a last will. However, Belgian inheritance law contains forced heirship rules that need to be considered.

Children and surviving spouses are legally entitled to a minimum share of the estate (the so-called ‘reserved portion’). If these forced heirs do not receive their reserved portion, they can make a claim for reduction.

The reserved portion is calculated as a fraction of the so-called ‘fictitious mass’, being the sum of all net assets of the deceased on the day of their death and all of the gifts that they made during their lifetime. Since 1 September 2018, in case of a successful claim for reduction, forced heirs receive in principle a compensation in value and can no longer claim to receive (part of) the assets themselves, although a donee can offer to pay with (part of) the assets.

Since 1 September 2018, the total reserved portion of all children is half of the fictitious mass. The other half is the ‘disposable share’, of which the testator can dispose freely.

The surviving spouse is entitled to the usufruct on half of the fictitious mass, with as an absolute minimum the usufruct on the family dwelling and its furniture.

Since 1 September 2018, ascendants are no longer forced heirs that can claim a part of the estate. Instead, and only if they are needy at the time of death of the deceased, they can now claim a monthly annuity or an equivalent lump sum that cannot exceed one quarter of the fictitious mass per ascending bloodline.

Legal cohabitants can disinherit each other completely; the surviving legal cohabitant is not a forced heir.

Intestacy

What rules and procedures govern intestacy?

Belgian inheritance law is based on blood relationship and partnership. According to Belgian law, there are four categories of heirs:

  • descendants;
  • parents and brothers and sisters and their descendants;
  • ascendants, including the parents if there are no brothers or sisters; and
  • collaterals, other than brothers and sisters, and their descendants.

Heirs from a closer category exclude the heirs from further categories. Within a category, the persons closest to the deceased exclude the others. In case of a predeceased heir, their descendants will jointly take up their position in the inheritance of the deceased.

If the deceased leaves both descendants and a surviving spouse, the latter inherits the usufruct on the entire estate whilst the descendants inherit the bare ownership. Since 1 September 2018, if there are no descendants but the deceased leaves one or more ascendants, brothers, sisters or descendants of brothers or sisters, then the surviving spouse inherits full ownership of the deceased’s part in any undivided property that was exclusively held by the couple (unless agreed otherwise in a marital contract) and can be entitled to a greater share than the usufruct of any other part of the deceased’s estate depending on the matrimonial regime that applied to the couple. If the deceased only leaves collaterals (other than brothers or sisters and their descendants) or if there are no heirs, the surviving spouse receives the full ownership of the entire estate.

A surviving legally cohabiting partner only inherits the usufruct on the family dwelling and its furniture, so a much more limited right than a surviving spouse.

Since 1 September 2018, the in-principle prohibition to make inheritance agreements on a future succession has been attenuated. Now, but still to a limited extent, it is possible to make such inheritance agreements.

Governing law

What rules and restrictions (if any) apply to the governing law of a will?

According to the EU Succession Regulation (650/2012 of 4 July 2012), by which Belgium is bound, the law applicable to an individual’s succession as a whole is the law of the state in which the deceased had their habitual residence at the time of their death. In a last will, a person may choose for the law of their nationality to govern their succession as a whole, provided that they possess that nationality when they issue the will or at the time of their death.

Formalities

What are the formal and procedural requirements to make a will? Are wills and other estate documents publicly available?

There are three types of will:

  • Public wills are drawn up by one notary in the presence of two witnesses, or by two notaries, and are subject to formal requirements. The testator must dictate the will, which is then fully read by the notary to the testator before it is signed by the testator.
  • International wills are drafted according to the rules set out in the Convention providing a uniform law on the form of an international will (Washington, 26 October 1973). It is less formalistic and consists of both a private document, which the testator declares to be their last will, and a notarial deed. Neither the notary nor the two witnesses know the content of the will.
  • Holographic wills are the least formal. They must be handwritten, dated and signed by the testator.

The existence of a public will or an international will is registered by the notary in a Central Register of Last Wills. A holographic will is registered in this Central Register only if it is voluntarily deposited with a notary. Only the existence of the will is registered, not its content. During their lifetime, only the testator and the notary that made the registration have access to the registered data. After death, anyone can ask the Central Register to confirm whether the deceased had a last will.

Validity and amendment

How can the validity of a will be challenged? Can the will be amended after the decedent’s death?

Challenging the validity of a public will or an international will is extremely difficult since it assumes that the dishonesty or even complicity of the intervening notary should be demonstrated in a court procedure. Challenging a holographic will might seem easier: it can be done by questioning the handwriting or signature of the deceased or by challenging their mental state of mind at the time the will was drawn up.

A will cannot be amended after the decedent’s death.

How is the validity of a will established in your jurisdiction?

There are three types of will:

  • Public wills are drawn up by one notary in the presence of two witnesses, or by two notaries, and are subject to formal requirements. The testator must dictate the will, which is then fully read by the notary to the testator before it is signed by the testator.
  • International wills are drafted according to the rules set out in the Convention providing a uniform law on the form of an international will (Washington, 26 October 1973). It is less formalistic and consists of both a private document, which the testator declares to be their last will, and a notarial deed. Neither the notary nor the two witnesses know the content of the will.
  • Holographic wills are the least formal. They must be handwritten, dated and signed by the testator. 

To what extent are foreign wills recognised? Do any special rules and procedures apply to establishing their validity in your jurisdiction?

Since Belgium is a party to the Hague Convention on the Conflicts of Laws Relating to the Form of Testamentary Dispositions, a valid choice as to the applicable law of an individual’s succession will also sort effect as to the form of the last will, hence should be recognised in Belgium (see Article 75 Section 1 of the EU Inheritance Regulation).

In a European context, a European certificate of succession (based on the European Inheritance Regulation) might be useful to execute a foreign will in Belgium.

Estate administration What rules and procedures govern:

(a) The appointment of estate administrators?

The heirs automatically obtain possession of all assets, rights and claims of the deceased, subject to the obligation to pay all debts of the estate (so-called ‘saisine’). Transmission of the estate is therefore not subject to an administrative procedure (no probate).

If a testamentary executor is appointed in a will, they must ensure that the wishes of the deceased are executed. However, their rights are limited; in principle, they do not have saisine and can neither liquidate nor divide the estate.

(b) Consolidation and administration of the estate?

The heirs automatically obtain possession of all assets, rights and claims of the deceased, subject to the obligation to pay all debts of the estate (so-called ‘saisine’). Transmission of the estate is therefore not subject to an administrative procedure (no probate).

If a testamentary executor is appointed in a will, they must ensure that the wishes of the deceased are executed. However, their rights are limited; in principle, they do not have saisine and can neither liquidate nor divide the estate.

(c) Distribution of the estate to heirs?

The heirs automatically obtain possession of all assets, rights and claims of the deceased, subject to the obligation to pay all debts of the estate (so-called ‘saisine’). Transmission of the estate is therefore not subject to an administrative procedure (no probate).

(d) Settlement of the decedent’s debts and payment of any taxes and fees?

The heirs automatically obtain possession of all assets, rights and claims of the deceased, subject to the obligation to pay all debts of the estate (so-called ‘saisine’). Transmission of the estate is therefore not subject to an administrative procedure (no probate).

Planning considerations

Are there any special considerations specific to your jurisdiction that individuals should bear in mind during succession planning?

In recent years, both the legislature and the tax authorities have shown an increased interest in the tax benefits to which a succession planning may lead. Several legal initiatives and positions have been taken to tackle tax benefits that were considered as exaggerated, leading to a stricter framework to exploit succession planning opportunities.