Drawing up, altering or executing wills

 A notary plays an important role in drafting and executing wills. A will is needed in all cases where a testator wishes to derogate from the statutory provisions on succession. Under the Dutch law of succession, children (and in some cases grandchildren) are entitled to a certain statutory share (legitime) of the estate. A testator can never disinherit children or grandchildren from this statutory share, and they may claim it without recourse to the courts. Since the introduction of new rules on the law of succession on 1 January 2003, the statutory share is always half of the amount that would have been inherited if there had been no will. Another new provision introduced on that date is that the statutory share may be claimed only in money and no longer in goods or property.

A will must be drawn up by a notary, who is required to inform the Central Register of Wills of the name of any person who instructs him to draw up a will, but not of its contents. This means that it is possible to establish after a death whether the deceased had made a will with a Dutch notary, and if so, which notary.

A non-Dutch national who wishes to draw up a will in the Netherlands, for instance because he lives and/or has capital or assets here, would also be well-advised to consult a notary. As problems of private international law often occur in such cases, a notary is well-placed to determine how best to protect the interests of the testator.

Probate proceedings are unknown in the Netherlands. After a death, a notary issues a ‘certificate of succession’ recording the names of the heirs. Once in possession of this certificate they can access the deceased’s bank and/or giro accounts. Since the introduction of new rules on succession on 1 January 2003, the certificate of succession must be issued in the form of a notarial instrument.

Neither does the Dutch law of succession recognise the position of personal representative. From the moment of death the estate passes to the heirs directly and immediately by virtue of the principle of ‘saisine’. One of the heirs is then usually authorised to wind up the estate on behalf of the others. He can, but is not required, to seek the assistance of a notary, but a notary must be used in order to settle and distribute any real property in the estate. A notary may also assist in completing the inheritance tax return.

The testator may also have appointed an executor to carry out these duties. The executor, who should be appointed by will, may (and, in certain circumstances, must) arrange to be assisted by a notary. The statutory function of the executor is to administer the assets of the estate and pay any debts. Under the will, the testator may limit or extend these duties. During his administration, the executor represents the heirs in law and otherwise.