Inheritance à la carte: The rules will change in 2015

  • Will new European regulations allow total disinheritance of a child or spouse as of 2015?

An inheritance includes many necessary procedures: a trip to the notary, determination of a marriage contract, reading of the will, a report of donations made while the deceased was still living and the determination of the heirs’ share based on the legal allocation for each. These procedures, regulated by Belgian civil law, are often complex and are further complicated when an “international” element is added to the equation.

At present the law of the country of residence normally governs the inheritance of non-real estate property, whereas the law of the country in which it is located governs real estate owned by the deceased. A cross-border estate can be sectioned into several smaller estates in the different countries where the deceased owned real estate. These types of cases are fairly common since there are now over 13 million European citizens living in countries other than their country of birth.

For example, consider the case of a Belgian living in France who passes away leaving real estate in France, Belgium, Italy and Spain. Inheritance of the real estate and buildings in France will be regulated by French civil law. The property in Belgium, Italy and in Spain will be dealt with through their respective national civil laws whose rules sometimes differ on how the heirs are designated, and what each can receive.

As of August 2015, a new European regulation will be implemented to simplify attorneys’ workload. From then on, the law of the country of residence of the deceased will cover the inheritance of all of real estate and non-real estate property. It will be possible to request in the will that the law of the deceased’s country of nationality regulate the estate. In short, a Belgian citizen will be able to have his entire estate, property and real estate, governed by Belgian law. The legal shares will have to be applied over his entire estate.

“On one hand, this new regulation will do a lot to simplify inheritance rights compared to the situation as it stands today. Belgians expatriates on the Côte d’Azur, as well as the French living in Uccle, won’t necessarily have to change the inheritance provisions in wills set up in the countries of their birth. All it takes is for them to make a quick trip to the local notary to specify that he wants his estate governed either by Belgian or French civil law”, says Kim Descamps, an estate planning advisor for KBC.

However, this simplification will be only on the surface. In reality, Belgian lawyers and notaries need to be well versed in law applicable in the other European countries, as well as with the delays that can at times hamper the procedure. Alain Van Geel of the Tiberghien law firm, however, is not convinced. As of 2015 “local notaries, for example, will have to use Belgian law to settle the inheritance of real estate in France, or French law in the case of a Belgian estate. This can cause the process to slow down to a crawl”.

Could this regulation be used to greatly reduce a child’s inheritance (under the Belgian legal rightful share provisions), or even completely disinherit him or her if the deceased lived in an EU country – except for the UK, Denmark and Ireland – but is a national of one of the countries where the civil code allows it? Can, for example, a French person living in Belgium avail himself of the French legal provisions, which are contrary to Belgian law, to completely disinherit his spouse? “The answer is, “yes,” to the extent that Belgian rightful inheritance provisions are not considered to be public policy. This last point is already a controversial point”, states Alain Van Geel. 

Inheritance rights will continue to be governed by the country of residence for personal property while real estate will be governed by the countries where it’s located. There is no restrictive European standardization planned for inheritance rights.

FRÉDÉRIC LEJOINT

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