Succession

Estate constitution

What property constitutes an individual’s estate for succession purposes?

For succession purposes, an individual’s estate consists of the property the individual has legal ownership of. Whether beneficial ownership is eligible for inheritance depends on the arrangements made between the legal owner and the beneficial owner. In principle, the usufruct of the property ends upon the death of the usufructuary. Co-owners can agree upon an accrual clause, the result of which is that the share of a co-owner in the jointly owned property accrues to the other co-owner or co-owners upon death.

Disposition

To what extent do individuals have freedom of disposition over their estate during their lifetime?

A spouse requires the other spouse’s consent for gifts during his or her lifetime, with the exception of the usual, non-excessive gifts. Certain gifts need to be taken into account in calculating the children’s statutory share. Agreements disposing of a proportionate part of an estate that has yet to be devolved are null and void.

To what extent do individuals have freedom of disposition over their estate on death?

The basic principle is that an individual is free to dispose of his or her estate. There are no forced heirs. However, children as well as disinherited spouses and registered civil partners do have a number of statutory rights.

The children of the deceased are entitled to 50 per cent of the share that they would have received on intestacy (see the next question). Therefore, 50 per cent of the estate can be freely distributed. The children’s statutory shares take effect as claims against their deceased parent’s estate. The children can recover their claims from estate assets. If these are insufficient to recover the entire claim, the children can recover their claims from the gifts that were made by the deceased (1) to his or her (other) children; (2) within five years preceding his or her death; and (3) if the intention of the gift was to infringe the children’s statutory rights.

The children can recover their claims from trust assets if the trust settlement is considered a gift by the deceased.

Children can collect their statutory share six months after the parent’s death. However, the parent’s will may contain a provision that the children can only claim their statutory share after the death of their parent’s:

  • surviving spouse or registered partner; or
  • life partner with whom the parent entered into a notarial cohabitation agreement.

 

This provision also applies when the surviving spouse or partner is not a parent of the children but a step-parent.

If a couple is married in the (former) statutory full community of property under Dutch law, the estate consists of half of the total assets of the spouses, except, for instance, for any private property as a result of an exclusion clause stipulated by a donor or testator from which the individual received a donation, legacy or inheritance. If a couple is married in another community of property under Dutch law, the estate consists of half of the assets that are part of this community of property.

A disinherited spouse or registered partner has a number of statutory rights. For example, he or she can claim:

  • the usufruct of the family home and household effects; and
  • the usufruct of other estate assets if he or she, when considering all circumstances, needs this for his or her maintenance.
Intestacy

If an individual dies in your jurisdiction without leaving valid instructions for the disposition of the estate, to whom does the estate pass and in what shares?

If there is no will, intestacy rules apply. These provide that the deceased’s spouse (or registered partner) and children inherit equal shares in the estate. However, the children do not immediately receive this share. Rather, the deceased’s spouse or registered partner receives, by operation of law, all assets of the estate and must discharge all liabilities (the statutory division).

The children receive a claim equal to the value of their share. However, this claim can only be collected after:

  • the death of the deceased parent’s spouse or registered partner; or
  • another event stipulated in the deceased’s will (such as remarriage of the surviving spouse or partner).

 

Stepchildren and cohabitants are not entitled to a share of the deceased’s estate in the absence of a will.

If the deceased is not married or registered as a civil partner and has no children, his or her parents and siblings will inherit his or her estate. In principle they will each inherit an equal share, with the provision that a parent is entitled to at least a quarter share of the child’s estate.

Adopted and illegitimate children

In relation to the disposition of an individual’s estate, are adopted or illegitimate children treated the same as natural legitimate children and, if not, how may they inherit?

The determining factor for a child’s legal position is whether legal familial ties exist between the child and the deceased.

Legal familial ties arise between the child and his or her mother as a result of birth or adoption.

Legal familial ties between the child and his or her father arise as a result of:

  • birth of the child within wedlock or during a registered civil partnership;
  • formal recognition of the child by the father;
  • judicial establishment of paternity; or
  • adoption.

 

As long as a child has legal familial ties with a parent, regardless of the way they arose, the child is an intestate heir and is entitled to a statutory share.

Natural (ie, biological) children and stepchildren are not intestate heirs and are, therefore, not entitled to a statutory share. However, they may be appointed as beneficiaries in the will.

Distribution

What law governs the distribution of an individual’s estate and does this depend on the type of property within it?

On 17 August 2015, the EU Succession Regulation (Brussels IV) came into force, also applying to the Netherlands. Under the Regulation, as a default rule, the whole of the succession to an individual is governed by the law of his or her last habitual residence. An individual may, however, designate the law of a state he or she possesses nationality of to govern the whole of his or her succession. Under the Regulation, no distinction is made in the succession of movable and immovable property.

Formalities

What formalities are required for an individual to make a valid will in your jurisdiction?

Generally, a will is made in the form of a deed that has been prepared and executed by a Dutch civil law notary. A holographic will (ie, a will handwritten by the testator) is also possible, although very uncommon. This type of will must be deposited by a Dutch civil law notary. In a deed of deposit, the testator must declare, among other things, that his or her holographic will both meet the statutory standards and is deposited by the civil law notary executing the deed.

Dispositions of clothing, personal objects, jewellery, furniture and specific books can be made in a codicil that needs to be handwritten, dated and signed by the testator.

Foreign wills

Are foreign wills recognised in your jurisdiction and how is this achieved?

The Netherlands is party to the HCCH Convention on the Conflicts of Law Relating to the Form of Testamentary Dispositions 1961 (the Hague Testamentary Dispositions Convention). Under the Convention, a will made in another jurisdiction is recognised as valid if its form complies with the internal law of:

  • the place where the testator made it;
  • the country of the testator’s nationality, domicile or habitual residence (either at the time when he or she made the will or at the time of his or her death); or
  • the place where the testator’s assets are located (for immovable property).

 

The declaration of inheritance, inter alia, refers to the formal validity of the foreign will.

Administration

Who has the right to administer an estate?

If the deceased has appointed an executor with the authority to administer the estate, the executor represents the heirs during the administration. The executor can sell the deceased’s assets if there are insufficient funds to discharge all liabilities, including legacies. In all other cases, the executor requires the heirs’ unanimous consent to dispose of the assets.

The deceased can limit the executor’s authority. For example, the executor may be responsible only for handling the funeral or the payment of a specific legacy. Once the executor completes his or her task, he or she must submit an account of the estate administration.

If the deceased has expressly authorised the executor to act as a settlement administrator, the executor can dispose of the estate without the heirs’ consent.

If no executor or settlement administrator has been appointed, the heirs jointly administer the estate.

How does title to a deceased’s assets pass to the heirs and successors? What are the rules for administration of the estate?

The deceased’s estate passes directly to the heirs, unless the deceased provides otherwise. Usually a declaration of inheritance, prepared and executed by a Dutch civil law notary, is required to prove entitlement to the estate.

The testator may appoint an executor or settlement administrator.

Challenge

Is there a procedure for disappointed heirs and/or beneficiaries to make a claim against an estate?

A beneficiary can challenge a will on the following grounds:

  • the testator’s incapacity; or
  • forbidden provisions (eg, a provision for the benefit of a medical doctor during the treatment of the deceased, or to a clergyman while ministering the deceased).

Children and disinherited spouses and registered partners have a number of statutory rights.

Law stated date

Correct on:

Give the date on which the information above is accurate.