Losing a loved one is a sorrowful thing to go through.
What makes it even more painful is that the heirs will quickly find themselves faced with many practical constraints and obligations to fulfil.
The notary is someone you can turn to for help in this difficult time, not least by helping you to carry out certain administrative formalities.
For this, the heirs will have to supply the Notary with a death certificate to enable him to begin acting in the matter.
The Notary will first check whether the deceased had made a will or testamentary dispositions in order to determine who will inherit the estate.
He will advise those entitled to inherit as to whether to accept the succession unconditionally, accept under benefit of inventory or reject it depending on what the estate comprises in terms of assets and liabilities. He will make the appropriate searches to determine the assets and liabilities of the deceased’s estate. If the deceased clearly had more debts than assets, then it would be better to reject the succession so as to preclude confusion of estates whereby the heir is placed in the position of having to satisfy the deceased’s debts.
No inheritance tax can be claimed from a forced or testamentary heir who has rejected the succession since he is then deemed not to have inherited and to be completely unconnected with the estate. Heirs who are uncertain about what the estate comprises in terms of assets and liabilities – e.g., if they do not know the deceased very well – should accept the succession under benefit of inventory: the heirs will then receive only what remains after the liabilities have been discharged. They will have to pay inheritance tax on such surplus.
Once the heirs have been identified, the notary will draw up a notarial affidavit of death and succession in which he relates in whom the estate vests and in what proportions according to the rules of intestate succession and/or under a will or other testamentary dispositions.
Production of a copy of this affidavit will enable those entitled to the estate to prove their entitlement, which will be particularly useful in enabling the bank which holds the deceased’s assets to release his/her accounts – which have been legally frozen since the death – in favour of those entitled.
The Notary will also supply you with a list of organizations to be informed like the vehicle licensing agency (DIV), utility companies or insurance companies. He will also help you draw up the declaration of succession (= Inland Revenue Affidavit) which is the tax document used to calculate the amount of inheritance tax owed.
The declaration of succession is a snapshot of the deceased’s estate on the date of death. It must be filed within 4 months of the death with the appropriate Registry Office under penalty of a fine. The inheritance tax must be paid to the Collector of Taxes within 6 months of the death.
European successions.
Choosing the applicable law for your inheritance is now possible
It is increasingly common for legal situations to straddle several countries. It is therefore not uncommon for an individual to have the nationalities of several states and have their estate spread out across various countries.
Since 17 August 2015, European successions are subject to a new regulation, Regulation 650/2012. It offers a new possibility to those who have several nationalities: the possibility of choosing the law that will apply to their succession.
In principle, the entire estate is subject to the laws of the State of the deceased’s last habitual residence. Since 17 August 2015, a person may decide that their estate will be governed by the law of the country of their nationality. This choice must be made in a will.
For instance, a person with Belgian and British nationality may choose to have their estate governed either by Belgian law or UK law. They must contact a notary in order to dictate their will.
However, the choice made only has an effect on the civil law aspects of European successions. There is no change to the rules on taxation. A British national residing in Belgium: even if they choose UK law, their heirs shall be required to pay the inheritance tax to the Belgian tax authorities, but the heirs shall be determined in accordance with the civil rules of UK law.