facts and misunderstandings
Did you know that the word "will" is not used anywhere in the law? We only come across the term "testamentary disposition." The law speaks of "utter will." There are seven forms of utterances, which I will briefly explain here. Sometimes people think that a will should be destroyed. Actually, what they mean to say is that they believe that one or more provisions in the disposition of property are not valid.
Legal requirements
A last will and testament can only be made by notarial deed or by private instrument deposited with a notary public. The deed must be signed by both the notary and the person concerned, otherwise the document is meaningless. It must bear place and date of signature. These are the most important formal requirements; otherwise, a disposition of property will not easily be annulled on formal requirements. This is because the ultimate will of the testator is at stake: it must be respected and relatively minor formal errors should not detract from it.
A will can only be made by one person at a time. Thus, a married couple cannot make a joint will. It is a strictly personal last will and testament. Underhand disposition of property: this is a document prepared by the testator. The pages must be numbered and each page must be authenticated by the testator with his signature. This way we know that the document is complete and has not been tampered with later. Also, of course, the place and date of signature. This document is then given to the notary for safekeeping, who draws up a deed.
Codicil: handwritten document that allows you to arrange only a limited number of things such as bequests of clothing and jewelry, household goods and books. In addition, it may include wishes regarding burial.
The emergency will: this document may be drawn up before anyone other than a notary public. Except for the signature, there are no formal requirements. But note: it is limited to extreme situations where one cannot do otherwise. This is not likely to occur in the Netherlands. Admission to a hospital or nursing home is no "excuse." After all, the notary can simply visit the testator there. Think rather of a trip aboard a ship where contact with a notary cannot be made.
Types of utterances
There are seven, clearly described in the law. We have a closed system: that means there are no more flavors or options. In the unlikely event that a disposition is of a kind not described in the law, the next step is to try to find out what the testator intended with that provision in his disposition and whether that can be subsumed under one of the seven kinds of disposition. For example, a person makes a disposition appointing nephew X to liquidate the estate. This is not possible because liquidation can only be ordered by the court under certain circumstances. But possibly the testator intended to appoint his nephew as executor. This can be done. If circumstances warrant, the invalid provision of appointing a liquidator may be read into the - but valid - appointment of an executor. Of course, this can lead to hefty discussions.
The probate: the testator leaves his entire estate to one or more heirs. He therefore appoints persons as his heirs. An heir succeeds the testator by universal succession, which means that the entire estate, obligations and debts pass to the heir or heirs.
The bequest: the testator grants a specific right of action to one or more persons. Example: I appoint my brother as sole heir (bequest), but bequeath the vintage sports car to friend Y. Y is then heir under a special title, he only has a claim to surrender the car. The brother will have to satisfy it. The bequest is not payable until six months after the testator's death.
Obligations: an executory will may impose certain obligations on the heirs. But note: the execution of a bequest (in our example: the delivery of the sports car) is not a burden! Examples are: taking care of the testator's cat or additionally providing for the living expenses of an Aunt Agaath. Now suppose that the heir in the case of Aunt Agaath thinks: I don't feel like it. Does Aunt Agaath then have a right of action? Answer: no, because an encumbrance, unlike a bequest, is not a claim. But Aunt Agaath can be very nasty by going to court and demanding that lapses of the heir's rights be declared. In doing so she may hit the heir hard, but in doing so she still does not have her money. Incidentally, an heir on whom a burden has been imposed can also go to court to have the burden changed.
Foundations: in very wealthy families, it is common for the testator to establish a foundation and appoint it as heir. The foundation's bylaws then determine how the estate is to be handled.
Gifts under condition: for example, someone appoints his brother as heir but stipulates that the needy cousin X has the usufruct of the estate until a certain date. In this case, the provision is a suspensive time provision. But a suspensory or resolutory condition can be chosen instead of a temporal clause.
Executors: the testator can appoint one or more executors. There are three variants. The first is the so-called 1-star funeral executor. As the name suggests, he is charged only with arranging the burial of the body. The second variant is the 2-star management executor. He manages the estate and ensures that all debts of the estate are paid. But he therefore does not distribute! Can he monetize assets of the estate? Yes, but only to use the proceeds to pay debts of the estate. In choosing the assets to be sold, he will consult with the heirs. So the heirs are still the ones who divide and settle the estate. Finally, the 3-star executor-settlement administrator. Of all three, this one has the most powers: he settles the entire estate, including the distribution.
Testamentary administration: a testator can stipulate that the estate due to an heir be placed under the administration of an administrator: for example, during the young years of life until the age of 27. But also because the testator finds that the heir in question cannot handle money. We then call this: guardianship in the interest of the beneficiary.
These are the extreme wills in a row, with a brief explanation. Keep an eye on this website for new publications related to inheritance law. Do you have questions or a specific problem with an estate? Feel free to call or email me!
Legal requirements
A last will and testament can only be made by notarial deed or by private instrument deposited with a notary public. The deed must be signed by both the notary and the person concerned, otherwise the document is meaningless. It must bear place and date of signature. These are the most important formal requirements; otherwise, a disposition of property will not easily be annulled on formal requirements. This is because the ultimate will of the testator is at stake: it must be respected and relatively minor formal errors should not detract from it.
A will can only be made by one person at a time. Thus, a married couple cannot make a joint will. It is a strictly personal last will and testament. Underhand disposition of property: this is a document prepared by the testator. The pages must be numbered and each page must be authenticated by the testator with his signature. This way we know that the document is complete and has not been tampered with later. Also, of course, the place and date of signature. This document is then given to the notary for safekeeping, who draws up a deed.
Codicil: handwritten document that allows you to arrange only a limited number of things such as bequests of clothing and jewelry, household goods and books. In addition, it may include wishes regarding burial.
The emergency will: this document may be drawn up before anyone other than a notary public. Except for the signature, there are no formal requirements. But note: it is limited to extreme situations where one cannot do otherwise. This is not likely to occur in the Netherlands. Admission to a hospital or nursing home is no "excuse." After all, the notary can simply visit the testator there. Think rather of a trip aboard a ship where contact with a notary cannot be made.
Types of utterances
There are seven, clearly described in the law. We have a closed system: that means there are no more flavors or options. In the unlikely event that a disposition is of a kind not described in the law, the next step is to try to find out what the testator intended with that provision in his disposition and whether that can be subsumed under one of the seven kinds of disposition. For example, a person makes a disposition appointing nephew X to liquidate the estate. This is not possible because liquidation can only be ordered by the court under certain circumstances. But possibly the testator intended to appoint his nephew as executor. This can be done. If circumstances warrant, the invalid provision of appointing a liquidator may be read into the - but valid - appointment of an executor. Of course, this can lead to hefty discussions.
The probate: the testator leaves his entire estate to one or more heirs. He therefore appoints persons as his heirs. An heir succeeds the testator by universal succession, which means that the entire estate, obligations and debts pass to the heir or heirs.
The bequest: the testator grants a specific right of action to one or more persons. Example: I appoint my brother as sole heir (bequest), but bequeath the vintage sports car to friend Y. Y is then heir under a special title, he only has a claim to surrender the car. The brother will have to satisfy it. The bequest is not payable until six months after the testator's death.
Obligations: an executory will may impose certain obligations on the heirs. But note: the execution of a bequest (in our example: the delivery of the sports car) is not a burden! Examples are: taking care of the testator's cat or additionally providing for the living expenses of an Aunt Agaath. Now suppose that the heir in the case of Aunt Agaath thinks: I don't feel like it. Does Aunt Agaath then have a right of action? Answer: no, because an encumbrance, unlike a bequest, is not a claim. But Aunt Agaath can be very nasty by going to court and demanding that lapses of the heir's rights be declared. In doing so she may hit the heir hard, but in doing so she still does not have her money. Incidentally, an heir on whom a burden has been imposed can also go to court to have the burden changed.
Foundations: in very wealthy families, it is common for the testator to establish a foundation and appoint it as heir. The foundation's bylaws then determine how the estate is to be handled.
Gifts under condition: for example, someone appoints his brother as heir but stipulates that the needy cousin X has the usufruct of the estate until a certain date. In this case, the provision is a suspensive time provision. But a suspensory or resolutory condition can be chosen instead of a temporal clause.
Executors: the testator can appoint one or more executors. There are three variants. The first is the so-called 1-star funeral executor. As the name suggests, he is charged only with arranging the burial of the body. The second variant is the 2-star management executor. He manages the estate and ensures that all debts of the estate are paid. But he therefore does not distribute! Can he monetize assets of the estate? Yes, but only to use the proceeds to pay debts of the estate. In choosing the assets to be sold, he will consult with the heirs. So the heirs are still the ones who divide and settle the estate. Finally, the 3-star executor-settlement administrator. Of all three, this one has the most powers: he settles the entire estate, including the distribution.
Testamentary administration: a testator can stipulate that the estate due to an heir be placed under the administration of an administrator: for example, during the young years of life until the age of 27. But also because the testator finds that the heir in question cannot handle money. We then call this: guardianship in the interest of the beneficiary.
These are the extreme wills in a row, with a brief explanation. Keep an eye on this website for new publications related to inheritance law. Do you have questions or a specific problem with an estate? Feel free to call or email me!