Will

When is a will relevant?

Without a will, the law determines who inherits and how the estate is divided. The law provides for a standard distribution: the surviving spouse generally acquires the assets, and children receive a monetary claim that is only payable upon the death or bankruptcy of the survivor.

A will is particularly important when you wish to deviate from those statutory regulations. Common situations include:

• There is a blended family with children from a previous relationship.
• You wish to disinherit a child or another heir.
• There is a business or specific assets for which arrangements are necessary.
• You wish to appoint an executor to oversee the settlement.

You wish to record specific wishes regarding the distribution of possessions.

Statutory distribution and deviation via a will

When someone dies without a will, statutory distribution generally applies in the Netherlands. The surviving spouse or registered partner acquires all assets of the estate. Children receive a monetary claim against the survivor equal to their share of the inheritance.

With a will, different choices can be made. For instance, the distribution can be adjusted, heirs can be disinherited, or an executor can be appointed. A will offers room for customization — but it must meet the legal requirements for validity.

Disinheritance and the statutory share

Through a will, you can disinherit a child. This means the child is not designated as an heir and has no right to assets from the estate. Nevertheless, in many cases, a disinherited child retains a claim to the legitimate portion.

The legitimate portion is a statutory minimum share of the estate. It concerns a monetary claim, not a right to specific assets. The size is calculated based on the value of the estate at the time of death. A claim to the legitimate portion must be invoked within a statutory period.

More information can be found on the page regarding legitimate portion and disinheritance.

Heirs who are indeed called to the estate but are uncertain about its financial status can opt for beneficiary acceptance. This protects private assets if the estate turns out to contain debts.

The role of the executor

An executor can be appointed in a will. The executor is responsible for the management and settlement of the estate. Their powers are limited by the will and the law.

In practice, discussions frequently arise regarding:

• De omvang van de taken en bevoegdheden van de executeur.
• The executor’s duty to provide information to the heirs.
• The liability of the executor in the event of incorrect settlement.

When the settlement stalls or the executor does not fulfill their duties properly, this can lead to a conflict between the heirs. In such cases, legal assistance may be necessary.

When can the validity of a will be called into question?

Not every will is undisputed. Sometimes, after a death, doubts arise as to whether the will was legally established. Questions that then arise include:

• Was the testator mentally competent at the time the will was drafted?
• Was the will established under undue influence or pressure?
• Was the will correctly drafted and executed before a notary?

The assessment of these questions requires legal analysis and knowledge of relevant case law. Depending on the circumstances, several routes are possible: consultation between heirs, mediation, or legal proceedings.

Scenarios: which route fits your situation?

Consultation between heirs

When heirs agree on the interpretation of a will, the estate can be settled without proceedings. A lawyer can assist with the legal interpretation of the testamentary provisions and in reaching an agreement.

Mediation

When heirs disagree among themselves but wish to avoid proceedings, mediation can offer a solution. A neutral third party facilitates the conversation. Legal guidance in the background is valuable here to keep your position clear.

Judicial proceedings

When consultation or mediation does not lead to a solution, legal proceedings may be necessary. This could involve the annulment of a will, the removal of an executor, or a claim based on the legitimate portion. Depending on the circumstances, the district court or the court of appeal has jurisdiction.

International situation

When the testator lived abroad or owned assets in multiple countries, additional rules of international inheritance law apply. Which law applies to the estate depends on the testator’s place of residence, treaties, and the content of the will.

Case Example

Following the death of a parent, a dispute arose regarding a recently amended will. One of the children doubted the testamentary capacity of the testator at the time of signing. By first legally mapping out how the will was established and which documentation was relevant, the position could be carefully assessed before further steps were taken.

Every situation requires its own legal assessment. The above example has been anonymized and serves for illustrative purposes only.

When is legal guidance advisable?

Legal guidance is particularly advisable when:

• You have doubts about the validity of a will.
• You have been disinherited and want to know if you have a claim to the legitimate portion.
• The interpretation of testamentary provisions gives rise to discussion.
• The executor is not fulfilling their duties properly.
• International aspects are involved that affect the applicability of the law.

An inheritance lawyer can analyze your legal position and determine an appropriate strategy.

Trust and quality

Simmelink Lawyers is affiliated with the Dutch Bar Association.
Read more about our reviews or see how we work via our working method.