Estate Planning

The European Union implemented new rules concerning cross-border successions to make it easier for people from the European countries to handle the legal aspects of their succession. Therules apply to the succession of those who die on or after 17 August 2015. The Regulation ensures that a cross-border succession is treated coherently, under a single law and by one single authority. In principle, the courts of the Member State in which citizens had their last habitual residence will have jurisdiction to deal with the succession and the law of this Member State will apply. However, citizens can choose that the law that should apply to their succession should be the law of their country of nationality. The application of a single law by a single authority to a cross-border succession avoids parallel proceedings with possibly conflicting judicial decisions. It also ensures that decisions given in a Member State are recognised throughout the Union without the need for any special procedure. This document issued by the authority dealing with the succession can be used by heirs, legatees, executors of wills and administrators of the estate to prove their status and exercise their rights or powers in other Member States. Once issued, the ECS will be recognised in all Member States without any special procedure being required. The European documents and source can be found on https://e-justice.europa.eu/content_succession-166-nl.do?clang=en
When the deceased person didn't have a testament or any arrangements the Belgian law regulates the inheritance of the deceased person as follows: The deceased's succession is according to several principles :
  • Lineage (ascending or descending)
  • Ranking of heirs
  • Degree of relationship
  • Per capita sharing.
  • Substitution
  • Split
There can be several possibilities, this depending on the marital status of the deceased person, if there are any children,...
  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.
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
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.
Succession involves the transfer of assets and liabilities from a deceased individual to one or more living individuals. The estate is opened at the domicile of the deceased.

• The settlement of (intestate) succession begins upon the death of a person who has passed away without leaving a valid will. In this case the assets are distributed as per the provisions set out in the Civil Code. • A succession based on a will occurs when the deceased has decided, by means of a will, to • assign all or part of his estate (appointment of heirs). • Contractual succession occurs when succession is attributed by virtue of a deed of gift which takes effect after the death of the donor (e.g. stipulation in a marriage contract).

Wills A will is a deed whereby persons, referred to as the testators, dispose of all or part of their assets from the time of their death. Testators can always revoke their will. Gifts A gift is a deed by which a person gives another person an asset.
  • A gift between living persons is, by definition, an act of giving performed while both the donor and recipient are alive. This legal act entails the donor immediately and irrevocably parting with the donated asset to the recipient, who accepts it. When the person doesn’t die in three years, the gift is exempted from tax.
  • Flanders, Brussels and Wallonia have their own systems.
Three types of legacies
  • a general legacy by which one or more persons inherit the entire estate;
  • a general legacy by which testators leave part of their estate, for example one third, all moveable or immoveable property, or half of their immoveable property, etc.;
  • a particular legacy by which the heir receives a sum of money, a particular asset or a category of assets, such as an antique wardrobe or all the books owned by the deceased.
Belgian law attributes a set part of the inheritance (known as the reserve) to certain heirs (children, the surviving spouse and ascendants). The rest of the inheritance may be disposed of freely to the benefit of third parties. If the legacies exceed the part available, they will need to be reduced. Under Belgian law, there are several types of wills
  •  The holograph will (testament olographe), which the testator must write entirely by hand, sign and date. No other stipulations apply. The testator may file a holograph will with a notary.
  •  The public or authentic will which is received by a notary in the presence of two witnesses or which is received by two notaries.
  •  The international will, which was established by the Washington Convention of 26 October 1973, is a will that is presented to the notary in the presence of two witnesses. The will is signed by the testator, the notary and the two witnesses. It is attached to an attestation by the notary who will be responsible for keeping it. This option is advisable when there is a foreign element associated with either the testator, the heirs or the assets in question.
Can I make a will abroad? Belgian citizens having their usual residence abroad who wish to make a will, can lodge a request with the competent local notary/civil servant or body. They also can lodge a request with a consular officer invested with the notarial powers to draw up a public/authentic or international will or make a will themselves in the form and under the terms and conditions which apply in Belgium. Search for wills Search for wills: it is possible to verify if a will in the name of the deceased has been registered with the Central Register of Last Wills and Testaments (CRT) in Belgium.
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.
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 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.
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
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.  
Our consular and diplomatic posts abroad are not authorised to become involved or take up a position in the actual liquidation of estates or to issue an opinion on succession. Only the heirs or rightful claimants or authorised persons (such as notaries, lawyers, etc,) may take the steps they deem necessary with a view to defending their interests to the best of their ability. Here our consular and diplomatic missions fulfill an accessory role, as to limit consular intervention to measures concerning preservation and administration. Our representatives may offer their services to facilitate the relations between heirs and local authorities.

Can I buy property in Belgium

Yes! Disregarding your nationality There are no restrictions to prevent foreigners from buying a property in Belgium, even if they are non-resident / non-national. Depending on the region where you buy a property (Brussels region, Flanders or Wallonia) you will have different costs and fees to pay. - All costs (registration fees, notary costs,…) average from 15-20 per cent added to the cost of the property - New or highly renovated properties have a VAT tax of 21% upon purchase. - Often you will be asked to sign a “commitment to buy”. This binds the buyer. - The buyer can take an option of buying the house without signing a commitment to buy if the seller agrees. - Two steps in Buying property in Belgium: I. Signing a ‘compromis’ or purchase agreement II. Sign the official deed with the notary public The purchase agreement is binding. Mainly it contains standard conditions and its common practice to pay ten percent of the sales price. Make sure you read these conditions carefully. For example: - add the provision that you can drop the deal if the bank does not give a loan within a certain time. - Make the necessary reservations about environmental check, property check,… - Stipulate a time for signing the official deed You have the right on an own notary without extra costs The notary has to check the legal aspects of the house or apartment. Make sure you are updated about all the circumstances of the house or apartment. If you are buying an apartment, you better check the rules of co-ownership.
Buying a house or land in Belgium is taxed. In some cases you have to pay a registration fee, in others VAT. When do you have to pay the one or the other? The consumer is obliged to pay VAT on everything he buys. When you buy a house or land through a private sale, than in principal you have to pay registration fees in stead of VAT. The amount of VAT is depending on the area that de property or land is situated. In Brussels and the french community the fees are 12,5% on the buying price, in Flanders you pay 10%. In some cases however you have to pay VAT at a percentage of 21%, unless it is a social project house (then you pay 6% or 12%). You never have to pay registration fees and VAT on one property, or you pay registration fees or vat. Some cases:
  • When you are buying land without a building --> registration fees.
  • When you buy land with a new building on it: Since the first of january 2011 you have to pay 21% VAT on the buying price of the land 21% on the price of the building.
A building is 'new' until the 31 of december of the second year following the year of the first use or the first taking in possession. There is a chance that you only have to pay registration fees on the land in stead of VAT. That is the case when one of the following conditions is met: The new building won't be sold with VAT (when the building will be used for professional ends). When the land and the building aren't sold buy one person or organisation When the land isn't delivered at the same time as the building. Some project developers try to avoid the VAT by selling the land and the building seperatly or by selling the land and the house on a different time. When you buy land with a house that isn't 'new' you have to pay registration fees and no VAT. Other situation is that you buy a house that is 'key on the door' or planned house buying. In that case there is a difference between buying a house that still has to be constructed and a building that is in construction. When you buy a house that is still has to beconstructed you pay only registration fees on the ground and later on you have to pay VAT on the house. When you buy a house that is under construction you are buying the combination of the land and new house. In this case you have to pay VAT on both land and house. In some cases there are lower registration fees on a house, when you are buying a modes new house.