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Inheritance law for expats in the Netherlands – key considerations

Inheritance is fundamentally a difficult subject to think about, but as an expat with family in other countries, it can be even harder as you have to deal with contradictory and confusing international laws during a difficult time. Here are some key considerations to simplify inheritance law for expats living in the Netherlands.

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Who will guard your child when you’re gone?

Historically, if you wanted to designate a guardian for your child, it had to be done by will. Today, a new option is available which makes this process cheaper and easier: appointing a guardian via the parental authority register.

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Attention divorcing Aussies!

Suppose you are an Australian, now living in The Netherlands. While you were living in Australia, you got married. During your marriage, you received an inheritance following your parents’ death in Australia. You’re now facing divorce in The Netherlands. Do you have to share your inheritance with your ex?

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Pay your ex-partner’s divorce costs?

Most Dutch marriages are still based on community of property. But who pays the lawyers’ costs in the event of a divorce? Does this come under the marital estate or do the spouses pay their own costs?

Community of matrimonial property

If community of property applies to your marriage, all your assets and debts as well as those of your partner are jointly owned. As soon as an application for divorce has been lodged with the courts, this community ceases to exist. From then on each partner is responsible for their own affairs again. It may be that some time elapses between the moment you decide to separate and the moment that the application for divorce is filed with the court. If you need a lawyer during this interim period, it raises the question of who is liable for the legal bills.

Legal costs during divorce proceedings

Usually in a divorce case, each partner pays their own legal expenses, or to put it better, the costs of the legal proceedings are reimbursed. Legal bills pertaining to the period after the community of property has been dissolved are no longer included in the community because it no longer exists. Each partner therefore has to meet their own costs, but what about the costs relating to the period before the community was dissolved?

Supreme Court judgment: should legal costs be included in the community of property?

The Supreme Court recently issued an interesting judgment concerning the payment of legal costs for dissolving the community of property. The Court of Appeal had ruled that these costs formed part of the community because the community still existed when they were incurred. But in the Supreme Court’s opinion this was too simplistic. Even where a 50/50 division of these costs is a big stretch, exceptions are only occasionally made in extremely unusual situations. On the other hand, exceptions to the general rule that the costs of bringing legal proceedings should be recuperated are rarely made either. Unsurprisingly, these two fundamental principles are often at odds with each other.

What now?

It remains unclear what the rule will be from now on. All the Supreme Court’s judgment means is that the Court of Appeal did not substantiate its decision sufficiently and the case has been referred to another appeal court for a final judgment that will take the Supreme Court’s point of view into account. As long as there is no general rule for the situation described above, it will be left to the judge to decide whether the legal expenses submitted to him or her are reasonable. So for the time being it is not clear whether or not you will have to foot the bill for your ex-partner’s legal expenses.

Death in the Netherlands – how to deal with inheritance issues

The death of a relative is never an easy thing to deal with, but can be even more complicated and distressing when you live in a foreign country. What does Dutch law say about succession and inheritance?

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Spell it out and let them know

When abroad, the death of a friend or colleague brings home to you how much trouble unfinished business can add to sorrow. For lasting peace of mind, dare to take the extra step and review the scenario you’d prefer in the case of your untimely demise: draw up a last will and make things easy for those you love.

Making a last will

A last will is too important a document to be done without seeking the advice of a lawyer or a notary. Dutch law requires a last will to be drawn up by a notary. One is also well advised to check if a previously formulated will complies with the new host country’s inheritance law. Your will made before moving to The Netherlands will be recognised, as long as the formalities required by the law of the country where the will was drawn up were fulfilled.

Choosing a country’s law

As the Testator, for the division of property and assets, pension rights and custody rights, you can choose a different law (one law per testament) to the law of the country in which you reside at the moment you draw up your will if:

  • you have the respective country’s nationality at the time you choose its inheritance law to apply for your case;
  • you have the respective country’s nationality at the time of your death;
  • you have habitually resided in the respective country at the time you choose its inheritance law to apply for your case;
  • you have habitually resided in the respective country at the time of your death.

Executing your last will in the Netherlands

In general, it will be possible to have your will executed in the Netherlands unless the will contains provisions that are contrary to Dutch law (e.g., in the case of a ‘share-testament’ that prescribes that a daughter inherits only half of a son’s inheritance).

Get help with inheritance planning

Our lawyers understand the challenges of dealing with inheritance while abroad. For advice you can trust, please contact us – our team will be glad to help you.

Inheritance Law Day, free advice at GMW advocaten

The lawyers of GMW advocaten have noticed that there is a much confusion relating to testaments and inheritance. For many people, inheritance law is not something they think about on a daily basis. Have you recorded what should happen if you suddenly become ill or pass away? Many people do not know how to approach this issue…

Prevent problems and take all your questions to the Inheritance Law Day on 9 November 2016. On Inheritance Law Day, you can receive 30 minutes of free advice from one of the inheritance law lawyers at GMW lawyers.

Your digital legacy

Have you ever wondered what happens to your digital legacy when you die? Think of all your online accounts and domain names, Facebook and Twitter accounts. And what about your e-mail account or online shopping credit? And who tells your online friends? How do relatives gain access to your accounts if they don’t know of their existence or passwords?

 

After the death of a loved one, his or her online life continues. This can create difficult situations for the family. Undesired messaging happens more often than one might think, for example receiving an e-mail reminder regarding the birthday of the deceased.

Relatives/heirs often have no idea about all the online accounts of their deceased relative. If nothing is recorded about what should be done with these accounts after their death, it can be difficult to settle the legacy. It is therefore sensible to think about this and make appropriate arrangements.

You can make preparations yourself. Start by listing your accounts, login names and passwords, as well as providing instructions on what to do with them after you death. You can do the same for important files like photos and videos. Keep the list in a safe place and inform only a few people where it is. However, there is the risk that the list can get lost.

You can also decide to record your wishes regarding your digital legacy with a solicitor in a will. Or you can appoint a social media executor in your will to ensure that your digital legacy is attended to. In your will, you can instruct a social media executor to delete your social media accounts or to convert them into memorial pages. The will is registered with the solicitor at the Central Will Register and the heirs can request and read the will after your death.

Problems may arise if, for any reason, you fail to make arrangements for your digital legacy.

Example

In 2014, GMW lawyers had a case regarding digital legacy. During the proceedings, GMW claimed that the client had authority to have access to the passwords and user names of the Apple IDs to the Internet company of the deceased. This was because, as GMW argued, the client was legally the owner of the passwords and user names (and all digital information) under the name of the deceased.

In the same proceedings, GMW ordered the opposing party to cooperate in recovering and providing the passwords, Apple IDs and all digital information of the deceased to the client within two working days of the judgement. Otherwise, they had to pay a penalty of € 1,000 a day. GMW won the lawsuit. The client is now the legal owner of the digital legacy of the deceased and has all the passwords and login codes of the digital accounts belonging to the deceased.

By making arrangements for your digital legacy, you can avoid having to embark on unnecessary legal proceedings.

Please contact us if you have any questions about your digital legacy.

 

Update article: December 2017. 

 

 

Using DNA to prove a hereditary right

A father has passed away and his estate has been divided when someone comes forward who claims to be the son or daughter of the deceased. Apparently, the deceased fathered this child without anyone (possibly not even the deceased himself) knowing about his or her existance. Read more

Information Day Family Law & Inheritance Law 2014

  • Did your divorce turn out more difficult than foreseen?
  • Do you wish to re-evaluate the alimony arrangement?
  • Are there issues to be solved in the visitation schedule? 
  • Having some trouble in organising the inheritance?
  • Do you encounter difficulties in dividing the matrimonial home?  

Modern families are becoming more and more complex. Many people have legal questions about their rights and obligations in personal issues. Normally one does not consult a lawyer very easily.

GMW lawyers wants to drop the barrier and enable people to ask these and other questions. Our doors are open at 9.00 o’clock on Thursday June 12, 2014.

GMW AdvocatenOur lawyers from the department Family Law & Inheritance Law will be ready for you on June 12th. During half an hour we will look into your questions, hopefully finding a personal solution.

Make an appointment without any obligations through info@gmw.nl or 070 3615048.

Date: Thursday June 12th 2014
Location: Scheveningseweg 52, 2517 KW Den Haag
Time: 09:00 – 17:00

Divorce and exclusion clauses under Dutch law: inheritances

There is no global consensus as how to best divide the assets of divorcing couples. Thus, there are sharp differences between the divorce laws across countries.

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