Cross-Border Inheritance Law (NL-GER)
Discover the essential aspects of Dutch inheritance law, from legal succession to testamentary arrangements. Learn how European regulations influence the process and gain insight into the role of notaries in handling estates. This blog series is invaluable for anyone seeking to deepen their understanding of inheritance law and gain insights tailored to residents at the Dutch-German border with cross-border family ties.
Succession, inheritance, settlement; important terms
The term "succession" is used to describe the passing on of the inheritance (the money, belongings, and debts of the deceased) to the heirs. Another word for "inheritance" is "estate," and in this case, the deceased is referred to as the "testator."
The legal rules of inheritance determine who inherits an estate, sometimes supplemented or replaced by what the deceased has specified in a will. The individuals who inherit are also called "heirs." The manner in which the inheritance is divided is also known as the "settlement." When international aspects come into play during the settlement, it is necessary to establish which legal rules of inheritance should be applied. Each country has its own laws governing the settlement of an estate.
Inheritance in the Netherlands; which law and which court?
In settling an estate with an international perspective, not only does the law of the country where someone dies play a role, but also the nationality of the deceased. This leads to complex situations where different legal systems may be involved. Determining which legal provisions of which country apply can be quite a task.
The European Succession Regulation (No. 650/2012) was introduced to create more uniform rules for inheritance within Europe. This regulation stipulates that inheritance is governed by the law of the country where the deceased had their habitual residence at the time of death. Additionally, there is the option to choose the law of the nationality of the deceased, the testator.
International Perspective on Succession
If a person had their habitual residence in the Netherlands at the time of their death, then the rules of Dutch inheritance law determine the succession and settlement of the estate. However, if the deceased made a will in which a valid choice of law for another country was made, then this law determines how the inheritance is distributed and who the heirs are.
Additionally, in various countries within Europe, there is the option to dispose of the estate by agreement. If this agreement is valid under the law of the country governing the agreement, then it is also a valid agreement for the Netherlands. The laws of another country apply to the agreement, but enforcement of the agreement can be sought in the Netherlands. There are some exceptions, but those will not be discussed here.
Dutch Inheritance Rules
The European Succession Regulation has harmonized the rules for determining the applicable law, improving legal certainty and predictability in international cases. Whereas in various countries within Europe, the court is the authority that determines who the heirs are, in the Netherlands, it is the notary.
If Dutch law applies, but assets are also located in other countries that are parties to the EU regulation, then the notary can issue a European Certificate of Succession. The European Certificate of Succession must also be accepted in these other countries. It does not matter whether the deceased had Dutch nationality or not. The format of the European Certificate of Succession is the same in all countries party to the agreement; only the language used differs. This makes such a certificate easily recognizable for specialists.
Legal Succession in the Netherlands
Dutch inheritance law, regulated in Book 4 of the Civil Code (BW), distinguishes between legal succession and testamentary succession. In the absence of a will, legal succession determines who the heirs are. In addition to the existence of a marriage or registered partnership, succession is based on blood relationship with the deceased. There are four groups of heirs entitled to succession. Persons with a more distant blood relationship (for example, uncles and aunts) are excluded if there are closer blood relatives (for example, children). Within a group of heirs, the estate is divided equally based on the degree of blood relationship. There are some minor exceptions, but it is beyond the scope of this contribution to elaborate on them.
The four groups of heirs in the Netherlands
The first group of heirs consists of surviving spouses or registered partners, together with the children of the deceased. If a child has died before and has left behind their own children, these grandchildren of the deceased collectively take the place of the deceased child (representation). If there are no spouses, registered partners, and (grand)children present, then the parents and siblings of the deceased form the second group of heirs. They collectively form the third group of grandparents and the fourth group of great-grandparents. In all cases, representation can also occur here.
Additional Provisions in Legal Succession
For the first group of heirs, the surviving spouse/registered partner and the children, an additional provision applies regarding the distribution of the estate. The spouse/registered partner acquires all goods, while the children receive a monetary claim. It is a claim on the surviving spouse, which is only due upon the death of the surviving spouse/registered partner or, in short, if they go bankrupt.
Legal succession provides a clear structure for the distribution of the estate and ensures that the assets of the deceased are distributed in accordance with legal provisions. This provides certainty and clarity for the heirs and minimizes the risk of disputes and conflicts. However, legal succession is not always the best solution. Especially when the testator has been married multiple times and has children from multiple marriages, the testator will have additional wishes or want to attach further conditions to the distribution. In such cases, it may be advisable to draw up a will to accurately record and execute the testator's personal preferences.
Conclusion:
In conclusion, this blog series has meticulously elucidated key facets of inheritance law in the Netherlands, encompassing crucial elements such as legal succession, testamentary arrangements, and the pivotal role played by notaries in estate administration. For individuals with cross-border familial connections residing along the Dutch-German border, anticipate forthcoming installments of our blog series. These will furnish a more nuanced examination of pertinent topics, offering bespoke insights tailored to your unique circumstances. We encourage you to remain engaged and enlightened as you navigate the intricate landscape of inheritance law.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.