Inheritance Law

Information on inheritance law for resident foreigners and their families with assets in and outside of 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.

Inheritance Law in Belgium

Belgian inheritance and inheritance tax rules depend on where the person lives and what kind of property they own.

  • For individuals domiciled in Belgium, the rules apply to the entire estate (with the exception of real-estate property outside Belgium)
  • For individuals living and domiciled outside Belgium, they apply to their real-estate property in Belgium

Domicile

Under Belgian law, domicile is the place where a person has their principal residence. It is the place where the centre of their family and economic interests lies, and where they are normally to be found. Belgium defines domicile in terms of residence at a specific address; Anglosaxon countries see a person’s domicile as their homeland. Belgium does not have a notion of domicile of origin. That can result in a conflict of laws.

The Belgian inheritance rules (and in particular the forced heirship rules) apply to the estate of anyone who is domiciled in Belgium at the time of death, as well as to the Belgian real estate of individuals who were not domiciled in Belgium.

Diplomats are not considered to have a domicile in Belgium and for them the inheritance rules apply only to any real estate owned in Belgium.

Officials of international organisations, however, have their domicile in Belgium, and are subject to the inheritance rules, even if they are not considered to have their fiscal domicile in Belgium for tax purposes.

Foreigners or Belgians who have moved out of Belgium are only subject to Belgian inheritance law for the immovable property they own in Belgium. All other property is governed by the laws of their country of domicile.

If there is no will

If a person dies without leaving a will, the Belgian inheritance rules decide who inherits the estate. In principle, the transfer is automatic, and the heirs do not need a court order to possess their inheritance.

Belgian inheritance law recognises heirs on the basis of different groups of people, ranked in descending order. The next group only inherits if there is nobody left in the previous group. All heirs in the same group inherit equal shares. The groups are:

  1. The children and grandchildren.
  2. The parents and their relatives.
  3. The brothers and sisters and their relatives.
  4. If there are none of these, the Belgian State.

A surviving spouse is an heir as well, but the extent of their inheritance rights depends on the situation:

  • If the deceased has one or more children, the spouse is entitled to an usufruct in the estate
  • If there are no children but there are other legally recognised heirs, the surviving spouse is entitled to the entire community property, as well as to an usufruct in the private property of the deceased (for the distinction see below)
  • If there are no other heirs at all (that is, no children, grandchildren, parents, brothers and sisters nieces or nephews), the spouse will inherit the entire estate

The usufruct is the right to hold the assets of the estate and to collect and use the dividends, interest, rent, etc. It is comparable to a life interest. It does not give a right to sell the assets of the estate. Both the heirs and the spouse have the right to ask that the life interest is converted into full ownership of some of the assets, but the spouse may refuse this conversion in respect of the house.

Community property is a typical continental form of matrimonial property. By default everything a Belgian couple acquires after their marriage is owned by both. The possessions they had before their marriage, as well as anything they inherit from their family, remain their own private property. They can change these rules by signing a marriage contract before a notary so that they either own everything separately or everything as community property

When one spouse dies, half of everything owned in community property remains the property of the surviving spouse and is not part of the deceased person's estate. The other half of community property falls in their estate.

Other legal systems do not have the concept of community property. In international situations, couples have to find out which country's law governs the ownership situation between husband and wife. Generally speaking, the Belgian solution , is to look at the law of the country where they had their first residence or domicile as a married couple. Until 2004, Belgium looked at the joint national law of a couple from the same country.

If there is a will

Belgian law has a system of forced heirship that protects certain heirs so that they cannot be excluded from inheriting part of a person's estate. These set aside a part of the estate defined by law (the "reserve") for protected heirs, even if the person makes a will. Protected heirs are certain family members and the spouse. Therefore, before a will is executed the following rules are put into effect:

  • If there is one child, he or she inherits at least half of the deceased’s assets, two thirds are reserved if there are two children, and three quarters if there are three or more children
  • The surviving spouse has an usufruct in one half of the assets of the deceased, in particular in the family home
  • If there are no children, the parents or grandparents are entitled to one quarter of the assets for the mother's side and one quarter for the father's side

A will may only dispose of the assets that remain after these rules are applied. If there are no protected heirs then a will may dispose of all of a person's property.

If a will leaves more to certain beneficiaries than is allowed under the heirship rules, the protected heirs can have the legacy reduced to the part of the estate the testator could dispose of without infringing their reserve. A protected heir can also ask the court to oblige beneficiaries of lifetime donations to return the part of the donation that has infringed their reserved right.

The estate

The estate is made up of all the assets and all the debts of the deceased person.

The assets are:

  • All their private property
  • The deceased person's share of the community property
  • All income to which they were entitled up to the date of death
  • All debts owed to them

The debts are:

  • All private debts
  • Half of any debts of the the community property if applicable
  • Funeral and other final expenses (such as hospital fees)
  • Legal fees for managing the succession
  • Any legacies to be delivered

If there are more debts than assets, the heirs can reject the inheritance.

Acceptance or rejection of the inheritance

Any heir, however they inherit (by will or by law), may:

  • Accept all the inheritance, in which case their estate and all their share of the deceased person's assets and debts become one
  • Accept the inheritance under condition of inventory (beneficium inventarii) which keeps the estate of the deceased separate from that of the heir. The heir will then only pay debts up to the total value of the inherited assets
  • Reject the inheritance, in which case the heir will inherit neither the assets, nor the debts of the deceased. The inheritance then goes to the other heirs

If an heir accepts an inheritance under condition of inventory or rejects it, he or she must make a declaration to the clerk of the court of first instance in the place where succession is being settled.

An heir who accepts an inheritance under the condition of inventory can change their mind and accept the inheritance outright. However, an heir cannot undo his rejection of the inheritance, even if he did not understand the consequences of rejecting it. For this reason it is important to obtain legal advice before deciding whether to accept or reject an inheritance.

These decisions are subject to time limits:

  • Three months to have the inventory drawn up
  • Forty days to decide whether to accept or reject the estate

Trusts

Belgian law does not have the concept of a trust, although foreign trusts are recognised in the Belgian international private law code.

The forced heirship rules could limit the extent of the estate that a person could transfer to a trustee. If the trust is set up by will, the trustee must ask for a court order to have the protected heirs hand over the assets to him. The courts have the right to limit this claim.

If the individual had set up the trust in a trust deed before death, the protected heirs can ask the court to decide whether the amount of the assets transferred to the trustee breaches the forced heirship rules. If the deceased has given away during his lifetime more than is allowed under the rules, the court can order that part of the trust assets be returned to the estate.

However, in practice, it is only if the protected heirs invoke the forced heirship rules, that the Belgian courts would limit the effect of the trust.

Further Information

Prepared by Marc Quaghebeur, International Tax Lawyer, De Broeck Van Laere & Partners, Rue Jules Besme 124, 1081 Brussels Tel: 02 423 00 42, Fax: 02 423 00 32 Author of the book "Rest in Peace. A Guide to Wills and Inheritance Tax in Belgium".