Your estate planning and COVID-19: What is still possible?

Larissa Cobbaert   |  

Larissa Cobbaert

Larissa Cobbaert

Larissa is part of the Tax & Legal team.

View all Posts

The crisis measures under COVID 19, or the corona virus, have had a serious impact on your planning, including on your estate planning.

After all, many steps or options in estate planning require the intervention of the notary. Think of a marriage contract, the notarial gift or an inheritance agreement. A power of attorney for health care executed before a notary also offers important advantages over a private power of attorney. Unless urgent, it is not possible to make an appointment or have one arranged with your notary for these matters until 19 April (possibly extended until 3 May).

However, this does not mean that your estate planning is put on hold, at least not completely. That is why we want to inform you about what you can still do in terms of starting or developing your inheritance planning.

We list the different options in a practical way.

1. Urgent documents

For urgent matters it is currently still possible to have recourse to your notary. A notarial intervention will be considered urgent in the following situations:

  • in the event of imminent death;
  • possible exceeding of the tax deadlines (unless the tax authorities confirm that they are granting an exemption from fines in that case);
  • or if the financial consequences for the parties should be too great.

For example, a donation in extremis should still be possible. The execution of a marriage contract prior to a marriage that is to be concluded during the crisis period also remains exceptionally possible.

2. Holographic will

Of course, there are also a number of steps that you can take yourself, without notarial intervention. For example, the drawing up of a private or holographic will. This is a will that you write and sign completely by yourself. This offers you the same possibilities and almost the same consequences as a notarial will if the following conditions are met:

  • You must write the will entirely on your own. You cannot have the will written or typed for you;
  • The will must also state your full name as well as the date of drafting;
  • Finally, the will must also be signed by you.

To avoid possible discussions afterwards, it is best to be professionally guided in terms of the layout.

Finally, we recommend that you deposit your holographic will with your notary, who will register it in the Central Register of the disposition of property upon death (C.R.T.). This registration guarantees that your will can be found after your death. Your heirs can no longer “lose” it.

3. Bank donations

There is also a legally valid alternative for the donation of funds or securities: the bank donation. A bank donation is an indirect donation in which you transfer a certain amount of money or securities from your account to the account of the beneficiary.

This avoids the formal procedural requirement on the basis of which donations must be made by notarial deed.

Nevertheless, there must be a purpose in making the donation in order for the donation to be valid. This can be established in a so-called “pacte adjoint”, documentary evidence in which the intention of the donor is recorded. This may also include certain modalities or charges, such as a ban on transfer, a conventional return clause or a financial charge.

If the bank donation is to be subject to inheritance tax, the “pacte adjoint” must be presented for registration. This is advisable if you are concerned that a death might occur within 3 years of the bank donation. If the donor dies within 3 years of making the donation, without the bank donation having been registered, the beneficiary will still be charged inheritance tax on the donation made.

In the current circumstances, the registration offices are exceptionally allowing private documents to be supplied by e-mail. You can therefore e-mail the “pacte adjoint” to the competent office for registration. Delivery of the document by registered letter is also requested as a precautionary measure.

4. Registration of donations/bank donations from the past

Have you made a bank donation or a donation before a Dutch notary within the last 3 years and would you rather have it registered now? These documents can now also be registered by e-mail at the competent office for registration.

5. You now wish to prepare comprehensive, non-urgent estate planning

Employees of the notary offices as well as employees of Bofidi are also continuing to work from home during this health crisis. Your estate planning can therefore be comprehensively prepared during this period. Once the crisis measures are relaxed, the deeds can then be executed relatively quickly.

The Flemish Tax Authorities are also adopting a tolerant attitude.

Finally, we would also like to inform you that the Flemish tax authorities, “Vlabel” for short, are qualifying the current circumstances as a situation of force majeure. For that reason, they have also decided to grant an extension to the declaration of estate.

In principle, this declaration must be made within a period of 4 months from the time of death. In the event of late filing, a tax increase is applied to the inheritance tax owed.

In concrete terms, Vlabel has now provided for forbearance of up to two months after the end of the period in which the tightened crisis measures apply. No tax increases will be imposed during this period because the declaration period has been exceeded.

In concrete terms, this means that for declarations with a deadline in the period from 13 March to 19 April 2020, an extension will be granted, without any tax increase, provided that the declaration is filed no later than 19 June 2020.

Forbearance will also be automatically allowed. Therefore, you do not need to take any further steps yourself.

No forbearance has yet been announced for Brussels and Wallonia by the Federal Public Service Finance.

If you have any questions about these options, please do not hesitate to contact us. We are always available, both by telephone and e-mail.