An inheritance, also referred to as an estate, comprises the passive and active components or debts and possessions that constitute the assets of a deceased person (the testator) at the time of his or her death.
CERTICATE OF INHERITANCE OR SUCCESION
A certificate of inheritance or succession must be drawn up by the civil-law notary or by the heirs themselves. This certificate clearly states to whom the estate shall belong and in what amount. This certificate can be used by the heirs to have the bank release the funds in the testator’s accounts.
Every case is unique
Who receives what from the estate is determined, first and foremost, by operation of law. The law contains extensive provisions to determine who is entitled to an inheritance and to which portion of an inheritance.
More specifically, this concerns the descendants of the testator, his/her blood relatives in the ascending line, and his/her blood relatives in the lateral line. The testator’s surviving spouse or legal cohabitant also has inheritance rights.
It goes without saying that not all persons in the above-mentioned categories have the same claims. The law therefore applies various criteria for determining succession. There are different orders, degrees and lines.
If the provisions set down by law do not correspond to the wishes of the testator, he/she can (although this is not without limitation) decide independently how he/she wishes his/her estate to be divided. This can be done, for example, by drawing up a will.
After the testator’s death, various administrative obligations have to be fulfilled:
DECLARATION OF INHERITANCE
The heirs must also submit a declaration of inheritance to the Flemish Tax Administration (Vlaamse Belastingdienst, VLABEL) to be used by VLABEL to calculate the inheritance tax owed.
DIVISION OF THE ESTATE
In practice, the main points of discussion between heirs are, on the one hand, the validity of the will and, on the other hand, the composition of the estate.
One of the heirs may be able to prove that the testator was no longer of sound mind when his/her will was drawn up. However, the burden of proof on an heir claiming invalidity of a will is very heavy, so these proceedings require extremely careful preparation.
Another frequent point of discussion between heirs concerns the composition of the estate. This is particularly the case when reservatory heirs or legally protected heirs are concerned.
Reservatory heirs are entitled to a legally-protected share of the estate from which no deviations can be made, neither by way of a will nor by way of gifts during their lifetime.
If, for instance, the testator had made substantial donations during his/her lifetime and these would have compromised the inheritance rights of a reservatory heir, it would be possible for this heir to object to the donation.
‘If an heir and a testator have become estranged, or another heir has adopted a prominent role in the testator’s life during his/her last years, one may be confronted with a quasi-empty estate at the time of death. It is therefore not inconceivable that considerable sums have been given away or donated by the testator or his/her trustee.
In situations like this, it is advisable to start by gathering as much information as possible. This can be done behind the scenes, in first instance, in which various investigative measures can be taken with the utmost discretion.
Subsequently, the heir or donee is given an opportunity to spontaneously offer an explanation of the situation. If this explanation satisfies our client’s concerns and an amicable or negotiated solution can be reached based on this explanation, drawing up and signing a settlement agreement will be sufficient, thus putting an end to the discussion between the heirs.
If an amicable settlement is impossible, we may or may not advise our client to initiate legal proceedings before the competent family court, requesting a judicial settlement and distribution and the appointment of a civil-law notary charged with the liquidation and distribution of the estate.’
Thanks to many years of experience, Keyser advocaten has acquired special expertise in assisting its clients during the settlement and distribution of an estate.