The Belgian inheritance rules determine how your assets are distributed upon your death, who inherits what when you die intestate (i.e. when you have not made a Will), what rights your spouse or civil partner has, whether your Will is valid, and whether your heirs have any particular protection.
These rules apply to non-Belgian nationals as well.
Under the Belgian inheritance rules, the default rule is that all your assets go to your children, in equal shares.
If you are married, and you do not make a Will, your spouse will have a usufruit on your estate. If you are in a registered or civil partnership, your partner gets a usufruit on the family home and on the furniture in the family home. Partners who do not register their partnership do not inherit.
If you do not have any children, your spouse inherits everything, but if your parents are still alive they are entitled a reserved share of your estate.
Usufruit is the right to hold the assets in the inheritance and to collect and use the dividends, interest, rent … It does not give a right to sell the assets of the estate.
When you have bought a house with your spouse, half of the house is yours and, upon your death, your half falls in your estate. Your spouse inherits usufruit of your half house and the children inherit the bare ownership. Ownership over his/her half the house and usufruit over your half allows your spouse to live in the house, or you to let it out to move into smaller accommodation.
Usufruit on a house gives you the enjoyment and the use of the property, but you also have to pay for all the expenses related to the property (the annual real estate tax, maintenance and repairs, refurbishment, etc ...). However, you do not have sole responsibility to pay for major repairs to the main structure of the building (walls, roof, ...).
For shares and bonds, usufruit is the right to collect and use the dividends of shares or the interest of bonds. The shares or bonds are usually put in one bank account in the name of the bare owners (the children) and the dividends and interest are paid into an account in the name of the surviving spouse.
The inconvenience of usufruit is that you do not own house or the investments and that you do not have the right to sell the house or the investments … without the agreement of the bare owner(s). And for a savings account, you can collect the interest paid, but you cannot touch the capital.
In common law, a life interest trust would be the closest thing to usufruit.
Indeed, when you inherit the usufruit, you cannot sell the property without the agreement of the bare owners, the children. And as long as they are under 18, you will need the authorization of the justice of the peace. In general, the judge will be reluctant to authorize a sale that could result in the children losing their inheritance, unless there is a real need, e.g. because you are moving abroad and need to purchase property there.
Generally, when the children are cooperative, usufruit does not pose a problem. They tend to keep in mind that the other parent still holds half of the total estate of both parents and that they can spend that, leaving nothing to the children except what is left of their bare ownership.
If you fear that your children or stepchildren will raise problems or that your children from a first marriage will or, you can take preventive action. You or your partner can use the part of your estate that you are free to dispose of and give more to your spouse or partner (in a Will, by changing a marriage contract, etc…).
If you inherit usufruit, that is for the rest of your life. Upon your death it extinguishes and the bare owners become full owners.
However, if you have usufruit, you can agree with the bare owners to terminate it for a price. You can buy them out or you can abandon your rights (that is called “conversion” of the usufruit), or you can sell the property together and split the price. Moreover, if they are unwilling, you can oblige the bare owners to sell you the property or to pay you for the usufruit, but they can also oblige you to do the same.
The value of the usufruit is calculated in function of the duration of the usufruit, and that depends on your life expectancy. To calculate the inheritance tax, the law lays down certain percentages depending, but in real life the percentages are a bit higher. The value of the bare ownership is the value of the full ownership minus the value of the usufruit.
If you anticipate problems, you can deny your heirs the right to ask for the termination of the usufruit by specifying this in your Will that you deny them the right to ask for conversion of the usufruit. Conversion of the usufruit can be done by selling the property in usufruit or for one party to buy out the other.
However, there are two limitations.
First, you can deny your spouse the right to ask for conversion, but you cannot deny your spouse the right to buy out the bare owners of the family home. And if the heirs request that the surviving spouse ends the usufruit on the family home he/she can always refuse.
Secondly, children are protected against stepparents. You cannot stop your children from a previous marriage from requesting the termination of the usufruit held by your current spouse. What is more, to protect stepchildren, the civil code states that when valuing the usufruit received by the stepparent, it must be assumed that the stepparent is twenty years older than the oldest stepchild. That means that the usufruit will be worth much less in the negotiations between the children and the stepparent.
No, you do not need a Belgian Will if you are happy with the Belgian default solution. If you want your children to inherit the bare ownership and your spouse to have usufruit on your estate, you do not need a Will. Most Belgians do not have a Will. Your foreign will may also be suitable.
If you are not happy with the Belgian default rules, you need a Will to decide who gets what. You just have to make sure that your children and your spouse are entitled to receive a specified share of your estate.
Protect your spouse
You can give whatever is not reserved to the children and leave that to each other in full ownership so that he/she has more control over your estate.
Protect your children
If you anticipate problems with the children (marrying the wrong person, substance abuse, difficulties managing money, ... ), you can give whatever is not reserved to the children and leave that to each other in full ownership. You can also decide that one of the children receives more, e.g. if they have more difficulties building up a successful professional career and may need financial assistance, e.g. to buy a first house.
Disinherit your parents
If you have no children, your parents inherit together with your brothers and sisters (and their descendants): in that case each parent receives one quarter – the rest (1/2 or 3/4) is distributed between the siblings). You can disinherit your siblings, but you can only disinherit your parents by making a Will in favour of your spouse
Decide who gets what
By drawing up a Will, you can leave specific assets to specific beneficiaries. E.g. you can decide that your son gets your collection of watches and that your daughter gets her mother's jewellery.
Make specific bequests to third parties,
You can use a Will to leave small sums of money to some friends or relatives or give to charity (within the limits explained below).
As explained above, both the bare owners and the surviving spouse have the right to buy out the other ; if you do not want your children, you can deny your heirs the right to ask their other parent for the conversion of the usufruit
Appoint a guardian
If you have underage children, i.e. under the age of 18, you can appoint a guardian,
You can also decide in your Will what funeral arrangements you want (cremation, burial, where ... ).
Appoint an executor
Although you do not have to, you can appoint an executor, to make sure that your heirs respect your last wishes; that may also be useful if you need the Belgian Will to have effect in the U.K. or Ireland.
A Will is also useful for tax planning.
Since there is no inheritance tax between husband and wife and between registered partners on the family home in Flanders or in Brussels, it can be advantageous to leave the family home to the surviving spouse or partner.
Another useful planning technique is to skip a generation by making bequests directly to grandchildren, spread the estate over as many people as possible and reduce the inheritance tax.
The Belgian civil code has three forms of Wills.
A notarized Will is a Will you “dictate” to a notary who writes it up as you dictate it, even in English. The days of handwrotten Wills are long gone ; notaries use word processors.
The international Will is a Will set down in a typed or handwritten document presented to the notary. The international Will is based on the Washington Convention of 26 October 1973 providing an International Will. The notary will not read the Will; he will just keep the Will with other notarial deeds.
These two forms of “Will” are witnessed by two witnesses.
The handwritten Will is the easiest and cheapest way of drafting a Will. To be valid, it must be completely written out in longhand, dated and signed. It does not need to be witnessed.
You do not need to have Belgian nationality to draft a Will in one of these forms in Belgium.
Any Will can always be modified by a later Will, whatever the form. E.g. a notarized Will can be revoked by a handwritten Will.
The existence of a notarized Will or an international testament is recorded with the Central Register of Wills, and so are any marriage contracts or changes to the marriage contract that have an impact on the inheritance rules. Upon death, a simple search in the register will give a list of all recorded Wills and marriage contracts.
Belgium has ratified the Hague Convention of 5 October 1961 on Conflicts of Law relating to the Form of Testamentary Dispositions. That means that Belgium recognizes Wills drafted outside Belgium if they are drafted under your national law, or under the law of your country of domicile or residence, or even under the rules of the country where you own real estate.
The Hague Convention has also been ratified by Antigua and Barbuda, Australia, Austria, Bosnia and Herzegovina, Botswana, Croatia, Denmark, Estonia, Fiji, Finland, France (including its overseas territories), Germany, Greece, Ireland, Israel, Japan, Lesotho, Luxembourg, Mauritius, the Netherlands, Norway, Poland, Serbia and Montenegro, Slovenia, South Africa, Spain, Swaziland, Sweden, Switzerland, the former Yugoslav Republic of Macedonia, Tonga, Turkey and the United Kingdom. Italy and Portugal have signed the treaty but have not ratified it. Check the website for the list of countries that have adopted it.
Please keep in mind that a foreign Will needs to be translated into one of the official languages (Dutch, French or German) and "translated" in terms that are consistent with the Belgian rules that protect certain heirs (see hereinafter.
You can change the default inheritance rules discussed above by making a Will or through the provisions of a Will that you made before you came to Belgium. However, there are a few limitations to your freedom to change the default rules.
You cannot make a Will in favour of someone who cannot accept the donation or who does not exist (e.g. an unborn child or a pet).
Moreover you cannot provide in your Will that you leave something to someone but imposing an obligation on that person to keep it for, and pass it on, to someone else. This interdiction means that, in Belgium, you cannot set up a trust by Will.
Nevertheless, you can leave something to your children with the obligation to pass it on to the grandchildren, or if you do not have children, you can leave something to your brother or sister with the obligation to pass it on to their children.
The most important limitation imposed under Belgian law is that there are some people you cannot disinherit. The “forced heirship rules” protect children, spouses and parents. A part of your estate is reserved for these protected heirs; you must ensure that they get the share of your estate that is set aside for them by law (this is called the “reserve”). You can only freely dispose - by gift or by Will - of the “disposable part of your estate”, that is the part that is not reserved for these protected heirs.
If you have one child, he/she must receive half of your estate; if you have two children: two thirds i.e. a third each; and if you have three or more children, it is three quarters.
This share is calculated on the estate that you have at the end of your life, plus anything you have given away during your lifetime, even a long time ago.
There are plans to limit the forced heirship rules to fifty percent for the children.
All of your children are protected by the forced heirship rules.
If you have two children from a first marriage and two from your current marriage, you have four children and they, together, are entitled to three quarters of your estate. The fact that your ex-spouse has received a very favourable divorce settlement that her children may inherit is irrelevant.
The children of your spouse or partner are not your children. They do not inherit from you, unless you adopt them.
Yes, your spouse and your parents.
If your spouse survives you, you must ensure that he/she has at least the usufruit in one half of your estate and in particular in the family home.
Even if you are not living together anymore, your spouse is protected and has the right to inherit until the day you are legally divorced. If you have been separated for more than six months, you can disinherit your spouse in your Will.
If you are not married, your partner is not protected by law even if you have registered your partnership.
If you have no children, your parents (or even grandparents) have a reserve as well. They are entitled to one quarter of the assets for the mother's side and one quarter for the father's side. However, they may be disinherited by making a Will in favour of the surviving spouse.
There are plans to abolish the forced heirship rules for the parents.
It is only when you have no children or grandchildren and if you have no other protected heirs that you can make a Will in full freedom and leave your estate to who you want.
If you have children, you cannot opt for the common law solution where you and your spouse leave everything to each other.
If you have two children you and your spouse can give each other a third of your estate in a combination with usufruit on the two thirds that go to your children. However, this may not be the most tax efficient approach, because that share will be subject to inheritance tax on both occasions.
Your heirs are entitled to a share of the estate you leave at the end of your life plus any gifts you may have made before your death. This clawback provision can go back quite far.
If they can prove a gift that reduces their share in the inheritance, each of the “protected” heirs can ask the court to cancel the gift and claim back that part of the inheritance to which they are entitled. They can also ask that the effect of the Will be limited to whatever you could freely dispose of.
However, nobody can do it for them, e.g. the tax authorities cannot file that claim on behalf of a protected heir to get more tax.
If you live in Belgium and you are deemed to be domiciled here, the Belgian inheritance rules will apply to your estate.
As long as you are domiciled in Belgium, your entire estate will pass to your children in accordance with the Belgian inheritance rules. There is only one exception: that is for real property that you own in another country. Transfer of that property will follow the local rules of that country.
Please note that this does not mean that Belgium Will not charge inheritance tax.
If you leave Belgium, the Belgian inheritance rules will not apply anymore except for the real property you have here. You will be subject to the inheritance rules of the country to which you move. Whether a Belgian (or a foreign) Will is to be considered valid in another country depends both on the legislation of the country where you live at the time of your death and on the legislation of the country where you have your assets.
That being said, real property in Belgium will always be governed by the Belgian inheritance rules.
If you move to a country that does not have forced heirship rules, you will be able to disinherit your children and leave everything to each other, but you children would be entitled to claim their share on your apartment in Brussels.
Diplomats are not considered to have a domicile in Belgium. As such, Belgian inheritance rules will apply only to any real estate that they own in Belgium.
For income and inheritance tax purposes, officials of international organizations may not be considered to have their fiscal domicile in Belgium ; for the inheritance rules they will normally have their domicile in Belgium.
The Belgian expatriate tax regime as well is solely a tax rule. It does not provide a route to circumvent Belgian inheritance rules.
The European Commission has set up a website where you can check the basic rules of the succession laws in the 28 EU Member States : www.successions-europe.eu.
Regulation (EU) No 650/2012 should simplify the procedure for settling international successions within the European Union and to simplify the inheritance rules for cross-border successions. In short, you will be able to choose – in your Will – which law will apply to all the assets in your estate: either the law of your country of habitual residence or the law of the country that has given you your nationality. However, this will not apply everywhere in the European Union; Denmark, Ireland and the UK have opted out. Nevertheless Danes, Irish and Brits living in Belgium may still decide to make a Will in accordance with their national laws.
The Regulation will also introduce a European Certificate of Succession that will constitute proof that someone is an heir or a legatee or has powers as an administrator of the succession. The certificate will be recognised throughout the European Union so that the procedure will be simpler and faster.