Heirs better protected

Minister Van der Steur ( Security and Justice) wants to better protect heirs from debts of the estate. An amendment to the law of succession will soon offer a heir the ability to better protect his or her private property from an unanticipated debt of the deceased. This was divulged in a bill sent to the Dutch Lower House.

The law of succession system allows a heir to accept or renounce an inheritance. The acceptance can occur in two ways: without making an inventory or subject to the benefit of inventory. Acceptance without making an inventory means that a heir accepts the inheritance without reservation. A heir can accept an inheritance without making an inventory by filing an attestation with the court registry, as well as by his or her conduct or by letting a term expire. After the acceptance without making an inventory, the heir can freely make use of all property of the estate, but he or she is also personally liable for all debts of the estate. In the case of an acceptance subject to the benefit of inventory, a heir is liable for the debts of the estate only to the extent that they are covered by the inherited assets. The heir must settle the estate under the supervision of the subdistrict court and can only dispose of the estate once all debts have been paid.

It appears in practice that heirs are quick to accept an estate without making an inventory without being aware of the ramifications. This can happen e.g. by taking items or by acknowledging a debt of the deceased. A heir can get into financial difficulties as the choice to accept without making an inventory is irrevocable once made. By means of the bill, Minister Van der Steur wants to make the regulation for acceptance without making an inventory through a certain conduct clearer. In the new system, there will only be acceptance without making an inventory when a heir sells property of the estate or withdraws it from creditors in any other way.

Furthermore, the Minister has also provided for an exceptional provision for cases in which a heir is confronted with an unanticipated debt following acceptance without making an inventory. In that case, consideration is being given to a situation in which it becomes clear only after the death of the deceased that the latter had committed a wrongful act while still alive and is liable for damages. To prevent a heir from having to cover such debt with his or her private property, the bill provides for a provision pursuant to which the heir can petition the subdistrict court for protection of his or her private capital.

The bill reveals that the minister is not opting for a new law of succession in which heirs would from now on accept an inheritance subject to the benefit of inventory by default. That choice would needlessly engender additional costs for most heirs, as the estate would have be settled in accordance with the legal settlement rules in that case. Moreover, that option would result in an additional burden for the judiciary. According to the Minister, such a change in the system is unnecessary as by far most inheritances are positive. The current system ensures that most heirs can settle the estate in a straightforward manner, namely in mutual consultation.