Arrange your estate properly

An annual or periodic settlement clause is rarely implemented in practice. If this is the case for you, the law stipulates that a settlement must still be made at the end of your marriage. The basic principle is that all assets present at the end of the marriage are deemed to have been formed from what should have been settled. This means that settlement must be made as if you were married in a community of property unless you can prove that (part of) the assets were formed with income that did not have to be divided based on the annual settlement clause.

There are many different reasons for making a will. If you have younger children, you will probably want to arrange custody of your children in the unforeseen event that you and your partner are both no longer around. You can also stipulate that your children’s in-laws will not receive any inheritance in the event of a divorce (the exclusion clause). If you only live with your partner, you can make a will to ensure your partner is well cared for. Other reasons could include: ensuring that your surviving loved ones pay as little inheritance tax as possible, making a business arrangement for your company to ensure continuity, or appointing a charity.

Yes, an old will is still valid. Legal inheritance law was amended in 2003 and the Inheritance Tax Act in 2010. The Inheritance Tax Act is the law that regulates whether and how much inheritance tax must be paid if you inherit something. Rules also change due to the judiciary. It may be that your will no longer complies with new rules, that it has a less favourable outcome or that your personal circumstances have changed. However, even if your will no longer matches your current situation, it remains valid.

Yes, at least if your partner inherits more than the exempted amount. The surviving partner’s exemption from inheritance tax in 2022 is €680,645. You do not have to pay inheritance tax on payments from a surviving dependents’ pension or annuity, but these payments do reduce your partner exemption. This is also called pension imputation. You are always entitled to a minimum exemption, regardless of how high the benefits from your surviving dependents’ pension and/or annuity are.

Your minimum exemption in 2023 is €186,915. In addition, the surviving partner may still have to advance inheritance tax for the children. If you have not made a will or a ‘will on the surviving partner’, your children will receive their inheritance as a non-demandable claim on the surviving partner. Depending on your assets, your children will then pay inheritance tax on this. The law, and often also a will, stipulates that the surviving partner must advance this inheritance tax for the children. 

A general power of attorney can be an independent arrangement. It can also be part of a living will. And this brings us to the difference between a power of attorney and a living will. The power of attorney regulates who can act on your behalf. The living will can be the title of the deed containing the power of attorney. Is only a power of attorney being arranged? Then it is logical to also call the deed ‘power of attorney’. Are you arranging other affairs in addition to a power of attorney? For example, recording your wishes in different situations? Nowadays, this deed is often called a ‘living will’.