The law stipulates who your heirs are. However, you do have a certain freedom to regulate your succession with the use of a will.
When does it make sense to make a will?
A will allows you to
- Protect or privilege the position of certain next of kin
- Leave (at least part of) your assets to persons other than your legal heirs
- Mitigate the inheritance tax burden resting on your heirs
- Link conditions to a bequest
In the case of a death involving cross-border elements, rules determine which inheritance law applies. In Europe1, this is usually the law of the place of residence. This can be overridden by a choice of law made in a will. In Europe, the only inheritance law you can choose is that of your nationality.
For a Belgian national usually resident in France and also owning homes in Spain and the USA, French inheritance law would normally apply to the estate, including the properties in Spain and the US. Under a will, he could stipulate Belgian inheritance law.
How to make a will
There are three kinds of wills
1. Handwritten wills
A handwritten will is entirely written, dated and signed by you yourself. The advantage is that no third party needs to be involved.
2. Notarial wills
You dictate the will to a notary-public in the presence of two witnesses or a second notary-public. You, the notary (or notaries) and the witnesses all sign it.
3. International wills
An international will is useful for Belgians or persons residing in Belgium whose wills are to be executed partly in another country. It is produced to a notary-public, who attests it in the presence of two witnesses.
Each kind of will has its own advantages and limitations
- A handwritten will doesn't cost anything, unless you give it to a notary-public for safekeeping. If offers less certainty than a notarised will because it could be challenged, and mistakes are possible.
- A notarised will is more expensive but offers the greatest certainty. You cannot make mistakes in the legal and technical formulation of the will. The fact that a notary-public is involved guarantees that your will is valid. You are also sure that the will can be found when you do pass away.
- An international will is useful for global citizens and offers the same legal certainty as a notarised will.
The beneficiaries under and terms of the will
When writing a will, you have to bear in mind that you cannot dispose of the portion of your estate that is reserved to the residuary legatees2. If your will makes provision for distribution of more than the freely disposable portion (sometimes called 'the dead's part'), the residuary legatees can claim that the excess should be restored to the reserved estate.
What you leave someone under a will is called a 'legacy' or a 'bequest' (technically, land is called a 'devise'). The beneficiary is called the 'legatee'.
Depending on what the legacy covers, three kinds can be distinguished.
1. A general legacy
You leave all your property to a legatee or legatees.
2. A legacy under general title
Here, your will provides for
- A legacy of a certain fraction (e.g. one-quarter) of all your assets or
- A legacy of all your moveable property or
- A devise of all your immoveable property or
- A legacy of a portion or fraction of your moveable property or
- A devise of a portion or fraction of your immoveable property
The beneficiaries are called 'legatees under general title'.
3. A specific legacy
A specific legacy is where you leave certain, identified property (e.g. your grand piano or your stamp collection) to specific individuals, who are then called specific legatees.
Only the general legatee needs to submit a probate declaration. The general legatee and a legatee under general title are under an obligation to pay the debts of the estate unless the will makes express provision that specific legatees also have to do so (you only pay those debts as legatee if you accept the inheritance).
Fideicommis de residuo
Worth considering for, say, childless couples.
A fideicommis de residuo (comparable to a cestui que trust in the common law) involves appointing two legatees under a single will. In the first instance, the first legatee inherits everything. That which remains after their death – the 'remainder' – does not go to their legal heirs but instead goes to the second legatee appointed under your will. Using this mechanism, you can ensure that, after your partner's death, your own assets pass to your own family instead of passing to the heirs of your partner.
The tax consequences of a fideicommis de residuo are that the first legatee is liable for the inheritance tax, as with a regular legacy. The second legatee pays inheritance tax on what remains. The rate at which the tax on the second legacy is calculated is based on the relationship between you and the second legatee.
'Divide and rule' wills
Worth considering if you have grandchildren.
By dividing your estate over several persons, each heir pays less inheritance tax. Each heir receives a smaller net portion of the estate and thus pays a lower rate of inheritance tax on their portion3.
Under a conjoint legacy, two beneficiaries are named. For example, you appoint a non-profit organisation as beneficiary (as general legatee), with instructions
- to distribute a specific legacy to your loved one (the specific legatee) and
- to bear the charge of the inheritance tax that your loved one ought normally to shoulder
That way, you leave something to your loved one without them having to pay any costs, and at the same time you do an act of charity. This is an option that is mainly gone for by people who have no children.
Revoking a will
You can revoke or add a codicil to a will at any time if your circumstances change or you want to benefit other parties.
1 Under the European Succession Regulation, these rules apply to deaths on or after 17 August 2015. The Succession Regulation applies throughout the EU, except in Denmark, the United Kingdom and Ireland
2 Residuary legatees are the deceased's descendants, blood relatives in the ascending line (if there are no descendants) and surviving spouse. They are entitled to a certain portion of your estate, which is called the 'reserve'
3 This is only the case where the inheritance tax is calculated separately for each heir, i.e. only in the case of direct line heirs, spouses or siblings