Which is the competent authority?
Who should I contact?
Last update: 10/1/2012
The Belgian authorities are competent to settle the whole succession when the deceased had his last habitual residence in Belgium. On the other hand, they are not competent in the case of real estate located abroad.
In Belgium, the estate in principle devolved automatically without any procedure. However:
- the court intervenes if the division of the estate is contested and in the case of certain amicable settlements.
- The civil law notary draws up the declaration of estate required by the financial authorities.
We strongly recommend the use of a civil law notary as a specialist in the law of succession and matrimonial property regimes, in particular when the deceased has left a prenuptial agreement or a will, or when his/her estate and financial situation are complex. The heirs are free to chose the civil law notary who will handle the succession. In the event of a contested settlement and in the case of certain amicable settlements (e.g. one of the heirs is not legally competent), it is even compulsory to use the services of a civil law notary.
Which international rules of jurisdiction apply:
- to the assets of a national or a foreign citizen?
The international rules of jurisdiction are set down in the Belgian Code of Private International Law of 16 July 2004 (hereafter “P.I.L. Code”).
For all requests relating to a succession, the Belgian courts have jurisdiction to know whether, first, the deceased had his/her habitual residence in Belgium at the time of death (see Article 4(2) P.I.L. Code for the definition of “habitual residence”); or whether, second, the request relates to assets situated in Belgium when it is introduced (Art. 77 P.I.L. Code).
- to the assets of the deceased if located abroad?
The Belgian courts also have jurisdiction for the assets of a deceased person that are located abroad, if the deceased had his/her habitual residence in Belgium at the time of death.
What are the main international agreements in force?
- Agreement dated 8 July 1899 concluded between France and Belgium on jurisdiction, the authority and enforcement of legal decisions, arbitration awards and authentic instruments (entered into force on 28/08/1900).
- Agreement of 28 March 1925 between Belgium and the Netherlands on territorial jurisdiction, bankruptcy, the authority and enforcement of legal decisions, arbitration awards and authentic instruments (entered into force on 01/09/29).
Which authority is responsible for the succession procedure?
No specific authority is in charge of the succession procedure.
However, as civil law notaries are specialists in family law, recourse to their services is highly recommended, particularly when the deceased has left a marriage contract or a will, if it is a cross-border case or when the situation regarding finances and assets is complex. The heirs are free to choose their civil law notary.
Furthermore, the intervention of the court of first instance (or even a justice of the peace) can be required, particularly for a succession devolved to incapable parties (minors, etc.); for a succession accepted under benefit of inventory; for a succession in abeyance; when a vesting order is required or the payment of a legacy; for a litigious settlement/apportionment. In this case, the court where the succession was opened has jurisdiction, except with respect to immovable property (lex rei sitae principle).
How and by whom is the succession procedure instigated?
The Belgian Civil Code recognises the principle that the estate is devolved automatically, without any procedure: simply through the death of a person, his/her heirs are vested with his/her assets, rights and actions, with an obligation to pay the succession duties (Art. 718 and 724 Civil Code).
How is the heir’s capacity checked?
The heir’s status is proved through a statutory declaration or a certificate of inheritance (= most common). Such a certificate is issued by a civil law notary or, in certain conditions, by the registrar of the office of succession duties that has jurisdiction for the depositing of the declaration of succession of the deceased (Art. 1240a Civil Code).
Can or must an inventory of the estate be drawn up?
An inventory of the estate can always be drawn up by a civil law notary at the request of one or more of the heirs (the deceased can never deprive the heirs of the right to request an inventory). However, in some cases, an inventory is compulsory, for example, in cases where the estate is accepted without liability beyond the assets descended (see n° 6 below) or, if a minor child or a legally incompetent person has rights in the succession.
Is there a system regarding the administration of the succession?
In principle, no. There are, however, exceptions to the principle of “le mort saisit le vif”, i.e. the principle that the estate (assets and liabilities) is vested in their heir the very moment the owner dies, in particular in the case of a disputed succession or an estate in abeyance (option for the courts to appoint an administrator or trustee).
How is the succession procedure closed?
In the event of judicial settlement/apportionment, the succession procedure is carried out by a civil law notary designated by the courts and it is closed by a settlement statement. In the case of an amiable settlement/apportionment, only the apportionment of immovable property needs to be carried out by notarised deed.
How is the estate transmitted to the heirs/legatees?
In principle, the heirs are automatically determined (Art. 724 Civil Code). However:
- the beneficiaries of general legacies instituted by an international or holographic will must obtain a vesting order from the president of the court of first instance (Art. 1008 Civil Code).
- the beneficiaries of specific legacies (Art. 1014 of the Civil Code), residuary legacies (Art. 1011 Civil Code) and, in certain cases, general legacies (Art. 1004 Civil Code) must request a “payment of a legacy”.
- certain categories of legatees must also be authorised by a public authority to accept the legacy that is left to them (for example, legs to a municipality, an organisation recognised as being of public benefit, a foundation or non-profit organisation).
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Successions in Belgium
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