Making a Will in Belgium

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Making a Will in Belgium

In Belgium an estate passes to a deceased person's heirs in two ways:

1. Following strict laws on inheritance that benefit family members (descendants, parents and brother and sisters) and the spouse in a fixed order of succession
2. Following a person's own wishes on the disposal of their property, as expressed in their will

See AngloINFO INFOrmation Page to find out about Inheritance Laws & Taxes in Belgium

Making a Will in Belgium

The following restrictions apply to wills:

• A will cannot be made in favour of someone who cannot accept or does not exist, such as a pet or unborn child
• "Substitution" is also forbidden. A person cannot leave assets to one person with the obligation to keep them for and pass them on to another person. This is because Belgian law does not have the concept of trusts. Non-Belgians resident in Belgium may set up trusts but within the terms of Belgian inheritance law

The part of the estate that is not covered by the heirship rules may be disposed of freely. If there are no protected heirs the entire estate can be disposed of freely.

Wishes for the treatment of one's remains can also be enforced if they are expressed in a will.

Note: donation of organs is automatic under Belgian law. If a person does not want to donate their organs they must register their withdrawal of consent at their local town hall.

Foreigners who wish to state how their property should be disposed of should draft a will:

• if they are resident in Belgium
• for any real-estate that they own in Belgium if they are not domiciled in Belgium

Legal validity of a will

To make a will a person must be:

• Over 18
• Minors over 16 may make a will for half their assets. Minors under 16 may not make a legally binding will
• Mentally and physically fit

A will can only be made for one person - two or more people cannot draw up their wills in the same document. The will must also be clear and precise (for example, it must name all beneficiaries) to avoid any ambiguity that could invalidate it.

Legacies

Legacies can leave:

• The whole estate to one or more people
• A part of the estate to named heirs, with the rest of the estate disposed of under the usual inheritance rules
• A sum of money, a particular asset, etc. to a named heir

These legacies can only total the value of the estate left over after the forced heirship rules have been applied. If total legacies exceed this amount, they must be reduced. If they are not reduced, they can be reduced by court order when the will comes into effect.

Types of will

Non-Belgian nationals can draft a valid will in any of the three forms legally recognised in Belgium:

• The handwritten, or holographic will (eigenhandig testament/testament olograph/eigenhändige Testament)
• The international testament (internationaal testament/testament international/internationale Testament)
• A notarial deed/public or authentic will (openbaar of authentiek testament/testament public ou authentique/öffentliche Testament)

Belgian law also recognises a will drafted outside Belgium if it was drafted under one of the following conditions:

• The national law of the person who made the will (testator)
• The law of the country of domicile or residence
• The rules of a country where the person owned real estate

The Handwritten (holographic) Will

This is the easiest and least expensive way to make a will. The person making the will must:

• write it out by hand, in full
• sign and date it

There are no other requirements. It usually is kept at home. Will kits do not exist for Belgian handwritten wills. After the person's death, the will must be taken to a notary for execution. The notary:

• certifies that it has been deposited for execution
• draws up a report on the status of the will
• within one month sends a certified copy of the report and a stamped photocopy of the will to the clerk of the court of first instance (which holds all legal documents) in the place where succession is being settled

If the heirs dispute the terms of the will, they can take the dispute to the court of first instance.

The handwritten will entails certain risks: loss, incompleteness, possible lack of clarity. It also takes longer to execute than other types of will. However, it is very simple, inexpensive and flexible.

The International Testament

This will is set down in a typed or handwritten document presented under envelope to a notary in front of two witnesses. The notary then keeps the will in the envelope, together with his attestation of the testator's declaration that it contains his last will. After the testator's death, the notary follows the same procedure as for the handwritten will.

This type of will is recognised through the Washington Convention of October 1973. It is recommended if the testator, the heirs or the assets covered are foreign.

The Notarial Deed

This will is either:

• Received by a notary in the presence of two witnesses; or
• Received by two notaries: the testator dictates the will to one of them who then drafts it in the form of a notarial deed

In either case the will must be read to the testator by the notary in the presence of the two witnesses - the will must express the legacy clearly and fully, including the part of the estate subject to the forced heirship rules. The testator then signs the will. If he cannot or does not wish to sign, this must be stated in his declaration along with the reasons for not being able to sign the will.

This type of will is time consuming, inflexible and relatively expensive. However, it gives the reassurance of an expert review of the terms. It is also easy to find after death and is simple to execute.

Registering a will

The existence of an international or public will is registered with the Central Register of Last Wills and Testaments (CRT/ZRT) – (Centraal Register der laatste wilsbeschikkingen/Registre central des dispositions de dernière volonté/Zentralregister der letztwilligen Verfügungen). This allows heirs to find an international or public will easily.

Altering a will

It is always possible to revoke or change a will by drawing up a new one.

Further Information

• The Belgian Federal Public Service
• The Royal Federation of Belgian Notaries (in Dutch & French)
• Beldonor.be - information on donating organs (in Dutch, French & German)
• Brussels Official Site (in Dutch & French)
• Flanders (in Dutch)
• Wallonia Tax Portal (in French)
• Taxation.be - taxation information site

Prepared by Marc Quaghebeur, International Tax Lawyer, Vandendijk & Partners Avocats/Advocaten,
Rue Edith Cavell 66, 1180 Brussels
Tel: 02 343 33 45, Fax: 02 343 41 45, www.vandendijk-taxlaw.be