Which law applies?
Can I choose the law applicable to my succession?
Last update: 10/7/2012
The law which applies to the succession is the law of the country whose nationality the deceased held at the time of his/her death. If the deceased had not lived in the country whose nationality he/she held for more than five years, the law applicable to the succession will be that of the country where the deceased had, at the time of his/her death, his/her last habitual residence. The reserved portion is also governed by the law chosen by the deceased. The same rule applies to real estate ( principle of the unity of the succession ).
Dutch law allows the testator to choose as the law applicable to his/her succession the law of his/her nationality or that of his/her habitual residence, at the time of choosing the law or at the time of death. For real estate, the testator may choose the law of the country where the property is located.
The rules of the 1989 Hague Convention on the Law Applicable to the Estates of Deceased Persons (HCL1989) indicate which law (i.e. Dutch law or the law of another country) applies to the succession which devolves on or after 1 October 1996, if there are elements of a legal relationship of more than one country involved. The Convention is applicable whether or not a will has been drawn up.
In addition, the Succession (Conflict of Laws) Act provides that your estate must be wound up in accordance with Dutch law if the deceased’s last place of residence was in the Netherlands (art. 4 section 1). The term ‘winding up’ refers to the issues connected with the administration of the estate, in other words how the heirs can accept or reject their inheritance, how they can acquiesce in the will and when they are liable for the debts.
Which criteria are used to determine the applicable law?
According to article 3 HCL 1989:
- Succession is governed by the law of the State in which the deceased at the time of his/her death was habitually resident, if he/she was then a national of that State.
- Succession is also governed by the law of the State in which the deceased at the time of his/her death was habitually resident if he/she had been resident there for a period of no less than five years immediately preceding his/her death. However, in exceptional circumstances, if at the time of his/her death he/she was manifestly more closely connected with the State of which he/she was then a national, the law of that State applies.
- In other cases succession is governed by the law of the State of which at the time of his/her death the deceased was a national, unless at that time the deceased was more closely connected with another State, in which case the law of the latter State applies.
Which principles govern the choice of applicable law?
According to article 5 HCL:
- A person may designate the law of a particular State to govern the succession to the whole of his/her estate. The designation will be effective only if at the time of the designation or of his/her death said person was a national of that State or had his/her habitual residence there.
- This designation shall be expressed in a statement made in accordance with the formal requirements for dispositions of property upon death. The existence and material validity of the act of designation are governed by the law designated. If under that law the designation is invalid, the law governing the succession is determined under Article 3.
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Successions in the Netherlands
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