Are you looking for information about inheritance law, or for an inheritance lawyer who can answer your questions with respect to the field? Then you have come to the right place. JPR advocaten has a team of specialist family lawyers with extensive experience in the field of inheritance law.
You are an heir
After the death of a family member or loved one, you can be involved in the settlement of the inheritance as an heir. You may be involved as a family member, brother or sister, child or grandchild, or as the (surviving) spouse, stepchild or housemate. Perhaps you had one or more children with the deceased person. Or perhaps you were appointed as heir in the last will and testament, because you had a special connection with the deceased person. In all these cases you will come into contact with inheritance law. The settlement of the inheritance follows the last will and testament. Should the deceased person not have one, then the inheritance is settled in accordance with the Law.
Certificate of inheritance
As an heir, you can have a notary draw up a certificate of inheritance. This certificate is evidence of the fact that you are an heir. You may need this to settle, among other things, the bank affairs of the deceased person. The certificate of inheritance also contains other information, such as the executor, whether it concerns usufruct, etc.
A testament, or last will and testament, contains the wishes of the deceased person in the event of their death. It states how they wish to be buried, who their heirs are, and in which way the inheritance must be settled. The testator appoints at least one or more heirs who will succeed them after their death. These person will be the owners of the testator's possessions and debts. Moreover, the testator can also leave a specific asset, such as a car or a specific sum of money, to a person or institution after their death. We call this a legacy.
If the person who has their testament drawn up is not capable of declaring their will, due to a mental disability for example, then the testament is null and void. This means that the testament does not have any value. If there is intimidation or deceit involved, then the testament can be terminated. Termination is also possible if the testament benefits a person who was involved professionally in the individual or mental care of the deceased person. A medical practitioner or the director of the nursing home of the deceased person can, as such, not benefit from their patient's inheritance. In principle, the notary will ensure that the person who wishes to draw up the testament has it drawn up declaring their own will without any of the above circumstances being the case. The notary will also point out any impossibilities.
The testament also usually appoints a person or institution that will handle settlement of the inheritance. This is called an executor whose task it is to manage the assets of the inheritance and pay the debts of the inheritance. Often, the executor is also assigned other tasks by the testator, which will be stated explicitly in the testament itself. After all, a lot must be arranged after a person's death. Firstly, there is the funeral, but also payment of bills, cancelling of various contracts (rent, newspaper, loans), and selling possessions to pay off debts. The executor will ensure the distribution of the deceased person's assets among the heirs.
Heirs according to the Law
If no testament is drawn up, the inheritance will need to be settled in accordance with the Law. Inheritance law is described in Book 4 of the Dutch Civil Code. Firstly, this states who the heirs are. In the Netherlands, we have a so-called 'descendants' system, meaning that there is a certain order of importance of heirs. The presence of an heir in a higher category excludes heirs from a lower category. In order, heirs are:
a. the spouse and the children
b. the parents, brothers and sisters
c. the grandparents
d. the great-grandparents
The persons in the same category will inherit equal parts. If there are no heirs in category a, then the persons stated in category b will receive the inheritance, etc. In the case of prior death of an heir, their blood relatives will inherit that person's part by proxy. If a mother dies, then her spouse and the children will inherit. If one of these children died prior, then the (grand)children inherit the part of their deceased parent. Parents each inherit at least one-quarter regardless of the number of sisters and brothers. If there are two parents, three brothers and two sisters, then the brothers and sisters inherit 1/10th part.
Since 2003, inheritance law states that if the deceased person was married or in a registered partnership, that the surviving spouse inherits all assets of the inheritance under the obligation of taking all debts as well. Assets is defined as the whole of the deceased person's possessions in terms of items, rights and claims. This is called the statutory division. A child legally receives a nonclaimable money claim on the surviving spouse. Payment of this child's share will only take place after the death of the surviving spouse, or in the event of the surviving spouse's bankruptcy or debt restructuring. The claim is increased annually by the statutory interest if the statutory interest is higher than 6% a year. Nevertheless, the surviving spouse can pay sooner, but this will not be forced. Payment cannot be forced even if the surviving spouse does not need the inheritance for their livelihood. The testator can naturally exclude the application of the statutory division in their testament, or impose conditions. Claiming the child's share in cases other than the Law or the testament is usually futile.
Optional rights I
A statutory division may result in family legacy ending in the hands of the stepfamily, because the child is only entitled to a monetary sum. It cannot be excluded that the child will never see specific assets that belong to their family again. To contain this risk, the child is granted so-called 'optional rights' with which they can lay a claim on the assets of the inheritance. In the Law, a distinction is made between a claim on a parent and a claim on a stepparent. If the surviving spouse remarries, then the child can demand that assets are transferred to them for a sum the size of their nonclaimable claim with interest. In such a case, the parent can still continue to use the assets (usufruct). The child has the same right with respect to the stepparent even if there is no new marriage.
Optional rights II
The claim of the child's share becomes claimable upon the death of the surviving spouse. If this spouse remarried, then the child can also exercise optional rights with respect to this new surviving spouse. In this case, they do not have to settle for a monetary payment, but can ask for the transfer of assets for the value of their inheritance plus interest. The same applies after the death of the surviving stepparent; their heirs are obliged to pay, but can also be forced to transfer assets instead.
If the testator has children, then in accordance with inheritance law, they can disinherit one or more children. This does not mean, however, that the disinherited child receives nothing. They may no longer be an heir, but they are still entitled to their legitimate part, the minimum statutory share in the inheritance. This legitimate part is a fraction of the share of the inheritance they would be entitled to as an heir: half. Except it does not apply to half of what is available at the time of death, but half of what could have been available if the testator never would have gifted money. This is not a simple calculation and requires research. Making such calculations is also impeded by conflicting interests of the various heirs. However, as a forced heir under inheritance law, you are entitled to full information to make the calculations. The option of laying claim to the legitimate share expires after five years. This right also expires if the heir has set a term for the forced heir to announce their claim on the legitimate share and this term expires.
When do you need an inheritance lawyer?
If there are no issues in the settlement of the inheritance, then you can take care of matters yourself or use a notary. If there is an issue or disagreement, then you will need a lawyer. It is possible that you will have a disagreement with the executor, for example if the executor wishes to sell one or more assets and you do not agree. It is also possible that you cannot find agreement on an honest division between heirs. Perhaps your brothers and sisters have received one or more gifts from your parents in the past, or perhaps one of them bought the parental home or your parents' business at a low price. Or if you have been disinherited as a child and you disagree with the calculation of the 'legitimate share'. There could also be a situation in which your father's or mother's new partner has been appointed as heir and you will have to make do with a nonclaimable claim as child while you wish to lay claim to specific family items.
JPR's lawyers are experts at advising the best possible routes. We can represent you in meetings with other heirs or with the notary. If necessary, we can conduct proceedings for you to have a court determine your share in the inheritance. Or to prevent proceedings for you by meeting with the other parties.