This factsheet was prepared in cooperation with the Council of the Notariats of the EU (CNUE).
1 How is the disposition of property upon death (will, joint will, agreement on succession) drawn up?
Apart from in a limited number of special cases (Articles 4:97-107 Civil Code (Burgerlijk Wetboek)), a will can be drawn up only by notarial deed or by handwritten private deed handed over to a notary for safekeeping (Article 4:94 BW). A will made by two or more testators is not accepted (Article 4:93 BW). An agreement concerning a future inheritance is also not accepted. According to Article 4:4(2) BW, agreements intending to dispose, in whole or in part, of a not yet devolved estate are null and void.
2 Should the disposition be registered and if yes, how?
The notary who has drawn up the will must register the information on the first following working day in the Central Register of Wills (CTR).
Also see: http://www.centraaltestamentenregister.nl. Information on safekeeping, registration and searching for a will is also available on the website of the European Network of Registers of Wills Association (ENRWA) in the ‘Information sheet’ section: http://www.arert.eu
3 Are there restrictions on the freedom to dispose of property upon death (e.g. reserved share)?
Only the descendants of the deceased (children or – if the children have predeceased – their children) are entitled to a reserved share. Neither the spouse nor the ascendants are entitled to a reserved share. The reserved share amounts to half of the estate, see Article 4:64 BW. If a descendant invokes his or her reserved share, he or she will no longer be considered as an heir but is a creditor.
4 In the absence of a disposition of property upon death, who inherits and how much?
In the absence of a will, the following principles are applicable to the various scenarios:
If the deceased was unmarried and had no children, in principle the parents, brothers and sisters inherit in equal shares, with each parent always inheriting at least a quarter.
If the deceased was unmarried and has children, the estate is divided equally among the children.
If the deceased leaves behind a spouse and has no children, the last surviving spouse inherits the entire estate.
If the deceased leaves behind a spouse and children, the children and the spouse inherit in equal shares, but the surviving spouse by law acquires the assets of the estate. The estate is wound up on behalf of the spouse. Each of the children will, in the capacity of heirs, be legally entitled to a monetary claim on the surviving spouse. The monetary claim corresponds to the child’s share in the estate. This claim becomes enforceable if the surviving spouse is declared bankrupt or is placed under debt restructuring (also see the Debt Restructuring Natural Persons Act (Wet schuldsanering natuurlijke personen) or dies (Article 4:13 BW).
Married spouses and registered partners are treated equally.
5 What type of authority is competent:
5.1 in matters of succession?
5.2 to receive a declaration of waiver or acceptance of the succession?
5.3 to receive a declaration of waiver or acceptance of the legacy?
5.4 to receive a declaration of waiver and acceptance of a reserved share?
The notary is the competent authority in the Netherlands with respect to inheritance law. The parties are free to choose a notary, irrespective of the last place of residence of the deceased.
The heir has three options. If the heir wishes simply to accept the inheritance, he or she can do so, implicitly or explicitly, without specific formalities. The consequence of acceptance of the inheritance is that the heir has unlimited personal liability for the debts of the estate. However, the heir can limit his/her liability by explicitly accepting the inheritance on condition that the debts of the estate do not exceed the entitlement. If the heir wishes to waive the inheritance or accepts it on condition that the charges do not exceed the entitlement, he or she must submit a declaration to the court. In this last case, the court sets a time limit for acceptance of the inheritance.
Legacies can be accepted or refused without specific formalities. Under Dutch law, limited acceptance is not possible for legacies.
A statutory heir can waive his or her right to the reserved share simply by not claiming it. The law does not provide for specific declarations for this purpose. If statutory heirs waive their reserved share, it is possible to set this down in a declaration.
6 Short description of the procedure to settle a succession under national law, including the winding-up of the estate and sharing out of the assets (this includes information whether the succession procedure is initiated by a court or other competent authority on its own motion)
In most cases, especially if there is a marriage contract or a will, calling on the services of a notary is the most appropriate way to wind up the estate. Each of the heirs or an executor of the will, if any, can call on a notary in the Netherlands. The parties have free choice of notary, irrespective of the last place of residence of the deceased. The notary will assist the heirs to settle the estate. He will determine who the heirs are, then check whether a will exists and advise the beneficiaries as to whether they must accept or possibly would do better to refuse the inheritance. He also draws up an inventory of the estate and the distribution thereof. He may also assist them in complying with their tax obligations. Only in a few situations does the court play a role in winding up successions. This may occur if winding up the estate is disputed or if one of the heirs (for example as he or she is a minor) is unable to look after his or her interests.
7 How and when does one become an heir or legatee?
In the Netherlands, no provision is made for any court procedure. However, there is an instrument, the declaration of inheritance (Verklaring van Erfrecht), see Article 4:188 BW, issued by the Dutch notary (see Article 3:31 BW) to all parties concerned, namely the heirs. The executor of the will can also ask for a declaration of inheritance. In the declaration of inheritance, the notary, on the basis of his authority, names the persons who are entitled to the inheritance, their share in the inheritance and, if applicable, the name of the executor. By means of the declaration of inheritance, the heirs/executor can identify themselves to the debtors of the estate and they will be able to obtain disposal of the bank balances, etc. A notarial deed is necessary for the transfer of immovable property or a right in an immovable property to one of the heirs.
8 Are the heirs liable for the deceased's debts and, if yes, under which conditions?
If the heir has unconditionally accepted the inheritance, he or she is fully liable for the debts of the deceased (Article 4: 182 BW). If the inheritance is accepted subject to inventory, the heir is liable for the debts only in so far as these are covered by the entitlement from the estate. He or she is not personally liable.
9 What are the documents and/or information usually required for the purposes of registration of immovable property?
The declaration of inheritance can be recorded in the public register of immovable property. For the transfer of title to immovable property or rights in immovable property, a separate notarial deed is necessary.
9.1 Is the appointment of an administrator mandatory or mandatory upon request? If it is mandatory or mandatory upon request, what are the steps to be taken?
Dutch law does not provide for the mandatory appointment of an administrator of the estate.
9.2 Who is entitled to execute the disposition upon death of the deceased and/or to administrate the estate?
Testators can designate an executor in their will, who can wind up the estate. In the case of acceptance subject to inventory, a special administrator may be appointed by the court.
9.3 What powers does an administrator have?
The executor named in the will, normally speaking, has limited powers in accordance with Article 4:144 BW. He or she can administer the estate and settle the debts of the estate. Testators can give the executor more rights, for example the transfer of goods of the estate without the permission of the heirs. If the executor is appointed as a special executor (the trustee winding up the estate), he can transfer goods and take all decisions concerning the division of the estate.
10 Which documents are typically issued under national law in the course of or at the end of succession proceedings proving the status and rights of the beneficiaries? Do they have specific evidentiary effects?
A document of distribution in the form of a notarial deed can be concluded by the heirs. This is required where an heir has legal incapacity (on account of being a minor or on account of receivership/judicial administration). A notarial deed is necessary for the transfer of immovable property or rights in immovable property in the Netherlands, see response to question 7 above. In all other cases, a document of distribution of the estate is not required. The declaration of inheritance is sufficient for the transfer of goods, such as bank accounts and other movable property.
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