A testator can appoint heirs to his estate by will. If there is no will then the statutory division applies. What should you do if the testator dies and you are the heir? Should you accept an inheritance or reject it? (the estate)?
Before making the choice to accept or reject the inheritance, it is important to have a good understanding of what the testator’s estate entails. Are there any debts? Or are there substantial assets?
If it is known that the testator had substantial assets, the choice of accepting the estate is easier than if the testator had debts.
Accepting the estate without an inventory being made
When an estate is accepted without an inventory being made, it means that the estate is accepted unconditionally. This means that both the assets and any debts are accepted. This can have consequences if it eventually turns out that there are more debts than assets after all. By accepting an estate without an inventory being made, the assets of the heir can also be claimed by creditors. This is a possibility when the debts of the testator turn out to be greater than the assets. Therefore, it is important to know whether the balance of the estate (income -/- debts) will be positive or negative before accepting the estate without an inventory being made.
Acceptance of an inheritance without an inventory being made can take place in various ways. This includes making a declaration at the court registry. If it turns out that the debts exceed the assets of the estate, it is a negative estate. By accepting the inheritance without the benefit of an inventory, the heir is legally obliged to pay these debts. It is also only possible to accept an heritance without an inventory being made if the heir is aged 18 years or older. Heirs under the age of 18 can only accept the inheritance without an inventory being made or reject it with the authorisation of the subdistrict courts.
Accepting the estate without an inventory being made on the basis of conduct
If the heir has not yet accepted or rejected the inheritance, but behaves like an heir, for instance by appropriating the testator’s property, the heir may be regarded as having accepted the inheritance without the benefit of an inventory. Making payments to creditors with the heir’s money from the estate is also considered an act of acceptance without an inventory being made.
Accepting an estate under the benefit of an inventory being made
In the case of acceptance under the benefit of an inventory, the estate is accepted with the benefit of inventory of the estate. The estate is accepted, but the heir is not liable for any debts. When an estate is accepted under the benefit of an inventory, the heir is obliged to settle the estate according to strict legal rules. This means that any debts of the estate must be paid. Should there be a positive balance after payment of these debts, this amount will accrue to the heir. Both the acceptance of the estate under the benefit of an inventory and the acceptance without an inventory being made take place by making a statement at the registry of the court.
Rejecting an estate
If it is known that there are more debts than assets, it is wise to reject the estate. Rejection is also a good option if the heir wants nothing to do with the inheritance. By rejecting the inheritance, the heir definitively relinquishes his rights with regard to the inheritance. If at a certain point it becomes known that there are more assets than debts, the rejection cannot be reversed. The heir may also not behave like an heir who has accepted the inheritance, such as by taking items from the testator’s house or withdrawing money from his bank account.
By acting in this way, the heir could be seen as having accepted the inheritance without an inventory being made. The heir is then liable to pay the debts of the testator from his private assets. However, some matters that cannot wait may be arranged by the heir. Such as the funeral. Attention should be paid to who giving instructions when arranging the funeral. This may lead to liability. As with acceptance with or without the benefit of an inventory being made, the heir must make a statement at the registry of the court.
Do you have any questions about accepting or rejecting an inheritance? Please contact me for more information.
This weblog was written in close cooperation with Bianca Kok-Beekhuizen, a legal assistant in the family and inheritance law department.