Wills and Estates
Belgian authorities don’t require a legal requirement to draw up a will and recognize wills drawn up in other countries. However, if you are a foreign resident and you haven’t stipulated in your will that you want your estate to be handled according to the laws of your home country, Belgian inheritance law will apply.
If you have left proportions of your estate that encroach upon Belgian inheritance rules, these amounts must be reduced. It is possible to change a will at any time, and it’s also permissible to have two wills – a Belgian will and one drawn up in your home country – as long as one doesn’t accidentally revoke or negate the other. It is best to consult with a notary or lawyer first if you are thinking of doing this.
Inheritance Law
Belgian inheritance law follows a system of forced heirship. This means a certain percentage passes automatically to heirs without the need for probate or court order. New rules introduced in September 2018 mean that children of the deceased must share half of the estate, regardless of how many children there are. The surviving spouse or partner receives the remaining portion for the rest of their life.
Applicable Foreign Inheritance Laws
EU citizens can choose whether Belgian laws or those in their country of nationality apply to their estate upon their death. If you are an expat living and want the inheritance laws of your country of nationality to apply rather than Belgian inheritance law, you need to express this clearly in a will or separate declaration. These laws will then apply as long as they don’t contravene local public policy (e.g., discrimination of heirs based on gender, discrimination of heirs based on being born out of wedlock).
The EU rules do not apply to the following matters linked to your inheritance:
- Inheritance taxes
- Your civil status
- The property regime of your marriage/partnership
- Matters concerning companies
Rejecting Assets and Contesting a Will
All beneficiaries to an estate, whether as heirs or through a will, can choose whether to accept or reject their inheritance. Under Belgian inheritance law, there are three options:
- Accept an inheritance, which means obligation to pay debts even if they exceed the value of the estate.
- Accept under beneficium inventarii (benefit of the inventory), which means that debts cannot exceed the value of the estate.
- Reject the inheritance.
Accepting under beneficium inventarii and rejection must be given in a declaration to the clerk of the court.
Contesting a Will
It can be possible to challenge a holographic will on the basis of suspecting forged handwriting or questioning the deceased’s mental state at the time the will was drawn up.
Challenging the validity of a public will can be very difficult as it carries the implication that the notary has behaved dishonestly.
Inheritance Law if There is No Will
If no will has been left, the estate is divided in the following order of priority:
- Children and grandchildren
- Parents and grandparents
- Siblings and their relatives
- The Belgian government
The rights of the surviving spouse in situations with no will depend on the familial situation:
- If the deceased has one or more children, the spouse is entitled to earn dividends, interest, and rent from the estate.
- When there are no children but other legally recognized heirs, the spouse inherits the community property and is entitled to earn interest from any private property owned by the deceased.
- If there are no heirs, the spouse inherits the whole estate.
Unclaimed Inheritance
If an inheritance is unclaimed, there are no heirs, or it is rejected by all beneficiaries, then the estate is passed to the Belgian state.
Gifts Before Death
Belgium operates a three-year rule for gifting movable and immovable property. This means that if you give something to an heir and then die within three years, they’ll then need to pay inheritance tax on the value of the gift. If you register the gift with a notary at the time, you’ll instead need to pay gift tax straight away, but your heir will not be subject to inheritance tax on the gift.
Gift tax in Wallonia varies from 3.3% to 5.5% (depending on your relationship with the donor). In Brussels, gift tax on immovable assets varies from 3% (up to €150,000) to 27% (over €450,000) for direct heirs, or from 10% to 40% for others. For movable assets, it’s 3% for direct heirs or 7% for other beneficiaries.
Parents can gift a property to their child but maintain the right to use it for the rest of their life. This means they’ll be subject to gift tax at the time but their heirs won’t be subject to inheritance tax.
Wills
There are three types of will:
- Holograph will: written entirely by hand and either kept at home or filed with a notary.
- Public or authentic will: received by a notary in the presence of two witnesses, or received by two notaries.
- International will: advisable when either the testator, heirs or assets are non-Belgian. The will is signed by the testator, a notary, and two witnesses and then attached to an attestation by the notary who will be responsible for keeping it.
How to Write a Will
The process of drawing up a will varies depending on which type of Belgian will you choose.
Holograph Will
This is the simplest and least expensive option, although it takes longer to execute than other Belgian will types. The will needs to be written by hand, signed, and dated and can be filed with a notary or kept at home. Upon death, the will goes to a notary who acts as the will’s executor.
Public or Authentic Will
This Belgian will needs to be drawn up and then read by the notary in the presence of two witnesses. The will needs to acknowledge the reserved part of the estate subject to forced heirship. The witnesses must be present when the will is signed. This option guarantees that procedures are followed correctly although it is more expensive, with fees paid to the notary.
International Will
This also involves presenting your Belgian will to a notary in the presence of witnesses. The will is concealed in an envelope and doesn’t need to be read out in advance and doesn’t get checked to make sure it follows guidelines. The notary keeps the envelope, together with an attestation of your declaration that it contains your last will and testament. Public/authentic wills and international wills are registered with the Central Register of Last Wills and Testaments.
The Royal Federation of Belgian Notaries provides more information and a tool to find notaries by postcode.
Executing a Will and Grant of Probate
As heirs automatically obtain possession of all assets (once debts have been settled), there is no need to obtain probate. This means that while you can set an executor, their role will be limited. Executors can be Belgian nationals, foreign nationals, or legal professionals.
The executor must respect the wishes of the deceased. However, they cannot divide the estate or administer the assets. The executor can only obtain possession of movable goods, not immovable ones such as property. Their duties are mainly around drawing up an inventory, selling movable assets in agreement with their heirs and arranging debt payments.
Estate Valuation
If you’re planning your estate, it can be helpful to get a valuation of your assets. This is especially the case when it comes to real estate. There are many English-speaking lawyers and civil engineers who can take care of this process for you and provide you with a financial statement. The valuation will usually take in the current value of the property and a projection of what’s likely to happen to the property’s value in the coming years.
Inheritance Tax
Belgian inheritance tax applies to the net value of the estate. This is the total value of assets plus corrections (debts, gifts, life insurance policies) minus any liabilities (outstanding loans, maintenance payments, hospital bills, funeral costs, capital taxes paid abroad). Inheritance tax is a regional tax and thus varies from region to region. Belgian inheritance tax is paid to the region in which the deceased was a tax resident for the majority of the last five years of their life.