Succession, gifts and wills
Succession involves the transfer of assets and liabilities from a deceased individual to one or more living individuals. The estate is opened at the domicile of the deceased.
- The settlement of (intestate) succession begins upon the death of a person who has passed away without leaving a valid will. In this case the assets are distributed as per the provisions set out in the Civil Code.
- A succession based on a will occurs when the deceased has decided, by means of a will, to assign all or part of his estate (appointment of heirs).
- Contractual succession occurs when succession is attributed by virtue of a deed of gift which takes effect after the death of the donor (e.g. stipulation in a premarital agreement).
A will is a deed whereby a person, referred to as the testator, disposes of all or part of their assets from the time of their death. Testators can always revoke their will.
To dispose of their assets via a will, testators must be of sound mind and body. A minor under 16 years of age may not, in principle, make a will. Minors aged over 16 may dispose of half of their assets via a will. The law does not permit more than one person to draw up their wills in the same legal document.
A gift is a deed by which a person gives another person an asset.
- A gift between living persons is, by definition, an act of giving performed while both the donor and recipient are alive. This legal act entails the donor immediately and irrevocably parting with the donated asset to the recipient, who accepts it. In principle a donation is irrevocable, since the recipient has accepted the gift. However, gifts may be revoked if the recipient does not meet the requirements or in the event of ingratitude.
- Donation by will is a legacy, whereby the donor is dead at the time the gift is made. Unlike a gift between the living, making a will is a unilateral act whereby a person disposes of their assets from the moment of their death.
Types of legacies:
- a general legacy by which one or more people inherit the entire estate;
- a general legacy by which the testator leaves part of their estate, for example one third, all moveable or immoveable property, or half of their immoveable property, etc;
- a particular legacy by which the heir receives a sum of money, a particular asset or a category of assets, such as an antique wardrobe or all the books owned by the deceased.
Belgian law attributes a set part of the inheritance (known as the reserve) to certain heirs (children, the surviving spouse and ascendants). The rest of the inheritance may be disposed of freely to the benefit of third parties. If the legacies exceed the part available, they will need to be reduced.
The inheritance of moveable property is governed by the law of the deceased's last domicile, whereas the inheritance of immoveable property is governed by the law of the place where the property is located. This may, on occasion, lead to a split inheritance of moveable and immoveable items. Since several different laws are applicable in such a case, the available share of the inheritance may be affected.
Under Belgian law, there are several types of wills:
- The holograph will (testament olographe), which the testator must write entirely by hand, sign and date. No other stipulations apply.
The testator may file a holograph will with a notary.
After the death of the testator, the will must be presented to a notary for execution. The notary will draw up a report on the probate and the status of the will. Within one month, he will send a true copy of this report together with a stamped photocopy of the will to the clerk of the court of first instance in the place where succession is being settled. If a general heir has been designated, the presiding judge may issue a vesting order, settling possession.
If one of the heirs states that they do not recognise the writing or signature of the deceased, the court must verify the will's authenticity.
- The public or authentic will (testament authentique) which is received by a notary in the presence or by two notaries. If the will is received by two notaries, the testator dictates it to them and it must be written out by hand by one of the notaries as dictated. Whatever happens, the testator must be given the will to read through. If there is just one notary, the will is read out in the presence of two witnesses. Everything must be expressly mentioned and the will must be signed by the testator. If the testator declares that they are unable to sign it, this fact shall be expressly mentioned in their declaration, along with the reason preventing such a signature.
- The international will, which was established by the Washington Convention on 26 October 1973, is a will that is presented to the notary in the presence of two witnesses. It is attached to an attestation by the notary who will be responsible for keeping it. This option is advisable when there is a foreign element associated with either the testator, the heirs or the assets in question. On the death of the testator, within a month the notary will draw up a report on the probate and the status of the will. As with a handwritten will, within a month the notary will file a copy of the report, the will and the declaration to the clerk of the court of first instance in the place where succession is being settled.
Draw up a will while living abroad
Belgians living abroad who wish to draw up a will may turn to a locally authorised notary, official or body. They may also approach a Belgian diplomatic or consular official with notarial powers to have an authentic or international will drawn up. An alternative is to draw up your own handwritten holograph will in the same format and subject to the same conditions as applying in Belgium.
Searching for a will
Searching for a will: When someone has died you may request verification of whether a will has been registered with the Central Register of Last Wills and Testaments (CRT). Belgians living abroad who believe they may be entitled to a will that has undergone probate in Belgium may contact the closest diplomatic or consular authorities to check. Enquiries will then be made to ascertain whether the deceased, especially if their habitual place of residence was Belgium, drew up a will that was deposited in the Central Register.
Inheritance : acceptance or rejection
Inheritance: acceptance or rejection: Anyone who is an heir, whether through an intestate inheritance or through a will, has three options. They may purely and simply accept the inheritance, in which case their assets and those of the deceased become one and the same. The heir is obliged to pay the debts of the deceased, even if they exceed the extent of the estate. They may also accept the inheritance under beneficium inventarii, in which case the estate of the deceased will remain separate from that of the heir. The heir will then only pay debts up to the total value of the inherited assets. Finally, an inheritance can be rejected, in which case the heir(s) will inherit neither the assets, nor the debts of the deceased. Acceptance of an inheritance under beneficium inventarii and the rejection of an inheritance must be effected on the basis of a declaration made to the clerk of the court of first instance in the place where succession is being settled.
Settling succession when abroad : role of the Belgian Missions
Settling succession when abroad: Our consular and diplomatic posts abroad are not authorised to become involved or take up a position in the actual liquidation of estates or to issue an opinion on succession.
Only the heirs or rightful claimants or authorised persons (such as notaries, lawyers, etc,) may take the steps they deem necessary with a view to defending their interests to the best of their ability.
Here our consular and diplomatic play the role of an accessory, so consular intervention must be limited to measures concerned with preservation and administration. Our representatives may offer their services to facilitate the relations between heirs and local authorities.