In principle, all donations in Belgium must take place in the presence of a notary. No exceptions to this rule are permitted for immovable donations, but there is another option for movable donations. The most well-known exceptions are manual donations and bank donations. In these cases, movable assets are transferred by hand (cash, works of art, etc.) or via the bank (transfer from bank account to bank account, from securities portfolios, etc.) from donor to beneficiary.
Whether or not to register movable donations
If the movable donation is made in the presence of a notary, a deed will be drawn up and the notary in question is always required to register that deed of donation. A donation tax must be paid for this. In the case of movable donations, a fixed flat rate is charged. In the Flemish and Brussels-Capital Region, this is 3% for donations in a direct line and between partners and 7% in all other cases. In the Walloon Region, this is 3.3% and 5.5% respectively.
If, on the other hand, you choose not to go through a notary, you do not have to pay donation tax. What often happens, but is not obligatory, is that a private deed, a ‘pacte adjoint’ is drawn up for such a manual or bank donation. This document, which is drawn up after the manual or bank donation has taken place, is signed by both the donor and the beneficiary and serves as proof of the donation. This sets out the main features of the donation. Furthermore, it is important to confirm the date of the donation, the intention of the donor to make a donation and the acceptance of the donation by the beneficiary in the pacte adjoint.
Why would you choose to make a donation via a notary or to have a pacte adjoint registered voluntarily? In both cases, donation tax must be paid, whereas this is not mandatory for movable donations. However, the main advantage of registering a donation is that you do not have to pay inheritance tax on the value of the donation any longer if the donor dies within three years of the donation. This is the so-called ‘suspect period’. By paying donation tax, the matter is therefore settled and you have peace of mind. In addition, the donation tax with its low fixed rates is often cheaper than the inheritance tax. Please note that in the Walloon Region this suspect period was recently extended to five years for all donations as of 1 January 2022.
How to register movable gifts oneself
If you choose not to make a donation through a notary, there are three ways to register the ‘pacte adjoint’ yourself. You can still decide to submit this pacte adjoint for registration at any time, for example because the donor has been diagnosed with a serious illness and it is not certain that the period of three years will be reached.
These are the three methods:
- Since 1 May 2022 it has been possible to submit the private document for registration via MyMinFin, the online platform of FOD Financiën (Federal Public Service Finance). This possibility applies to all the Regions and offers a welcome administrative simplification.
You upload the private document in a pdf file on the platform. The file is either a scan of the document with the manual signatures of the donor and the beneficiary or an original digital document with the digital signatures of the donor and the beneficiary. If several documents have been drawn up as a result of the donation (for example, a prior letter of intent, an annex, etc.), do not forget to combine all the documents into one pdf.
If the submitted document meets the legal requirements for registration, any payment message and the registration history will be delivered via your MyMinfin portal under ‘my documents’.
2. The private document can also be submitted for registration by post, addressed to the scanning centre of FOD Financiën (Federal Public Service Finance). Preferably use a copy of the document with the manual signatures of the donor and the beneficiary. The paper documents which you send to the scanning centre are not automatically returned after scanning. It is also important that you state on the document to be registered who specifically is submitting the document for registration. It is that person who receives any payment message and the registration history (the proof of registration) or the rejection message with the reason for rejection.
3. As you can use MyMinFin or the post, a visit to the Kantoor Rechtszekerheid (Legal Compliance Office) is no longer necessary. However, if you do wish to do so, you can of course still go on site with a prior appointment. In this case as well, it is recommended that you bring copies of the documents, with manual signatures. You must also state on the document to be registered who specifically is submitting the document for registration.
Our experts at Bofidi will be happy to help you
Do you have any specific questions about this subject? Are you planning to make a movable donation yourself? Then please do not hesitate to contact us. Bofidi’s team of experts will be happy to help you.