Private Wealth 2021 Netherlands Dirk-Jan Maasland, Rogier Ploeg and Jules de Beer Loyens & Loeff - Loyens & Loeff
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Definitive global law guides offering comparative analysis from top-ranked lawyers Private Wealth 2021 Netherlands Dirk-Jan Maasland, Rogier Ploeg and Jules de Beer Loyens & Loeff practiceguides.chambers.com
NETHERLANDS
Law and Practice
Contributed by:
Dirk-Jan Maasland, Rogier Ploeg and Jules de Beer
Loyens & Loeff see p.22
CONTENTS
1. Tax p.3 6. Roles and Responsibilities of
1.1 Tax Regimes p.3 Fiduciaries p.18
1.2 Stability of the Estate and Transfer Tax Laws p.8 6.1 Prevalence of Corporate Fiduciaries p.18
1.3 Transparency and Increased Global Reporting p.9 6.2 Fiduciary Liabilities p.18
6.3 Fiduciary Regulation p.18
2. Succession p.11
6.4 Fiduciary Investment p.18
2.1 Cultural Considerations in Succession Planning p.11
2.2 International Planning p.11 7. Citizenship and Residency p.18
2.3 Forced Heirship Laws p.11 7.1 Requirements for Domicile, Residency and
Citizenship p.18
2.4 Marital Property p.12
7.2 Expeditious Citizenship p.18
2.5 Transfer of Property p.13
2.6 Transfer of Assets: Vehicle and Planning 8. Planning for Minors, Adults with
Mechanisms p.13 Disabilities and Elders p.18
2.7 Transfer of Assets: Digital Assets p.14 8.1 Special Planning Mechanisms p.18
8.2 Appointment of a Guardian p.19
3. Trusts, Foundations and Similar Entities p.14
8.3 Elder Law p.19
3.1 Types of Trusts, Foundations or Similar Entities p.14
3.2 Recognition of Trusts p.14 9. Planning for Non-traditional Families p.19
3.3 Tax Considerations: Fiduciary or Beneficiary 9.1 Children p.19
Designation p.15 9.2 Same-Sex Marriage p.20
3.4 Exercising Control over Irrevocable Planning
Vehicles p.15 10. Charitable Planning p.20
10.1 Charitable Giving p.20
4. Family Business Planning p.16
10.2 Common Charitable Structures p.20
4.1 Asset Protection p.16
4.2 Succession Planning p.16
4.3 Transfer of Partial Interest p.17
5. Wealth Disputes p.17
5.1 Trends Driving Disputes p.17
5.2 Mechanism for Compensation p.17
2
NETHERLANDS Law and Practice
Contributed by: Dirk-Jan Maasland, Rogier Ploeg and Jules de Beer, Loyens & Loeff
1 . TA X income (effective tax rates in 2021 vary from
0.59% to 1.76%).
1.1 Tax Regimes
Domicile and Residency In general, income and deductible amounts
In the Netherlands, resident individuals are taxed derived from and relating to a certain source can
on their worldwide income and wealth. Non-res- only be offset in the same box. However, cer-
idents are only taxed on certain types of income tain personal allowances (eg, alimony, childcare
and wealth with a nexus to the Netherlands (see expenses and medical expenses) are deductible
Non-residents, below). Domicile is not relevant in box 1, box 3 and box 2 (in this order) if the
for Dutch tax purposes. income from the preceding box is not sufficient
for a deduction in full.
According to Dutch case law, a person is con-
sidered a resident for tax purposes if, based on Partners are, in principle, taxed individually. This
all the relevant facts and circumstances, a “dura- is only different for certain categories of joint
ble bond of a personal nature” exists with the income, deductible expenses and wealth, which
Netherlands. This is determined on, inter alia, can be apportioned freely between partners. For
the availability of a primary residence, where the Dutch personal income tax purposes, “partners”
person has a place of habitual abode and where refers to the following:
the family is located. Intentions or the number of
days spent in or outside the Netherlands are of • married people and people that have entered
lesser relevance. into a registered partnership recorded with
the municipality (automatically); and
A person may have durable bonds with different • people living together without being married
countries, whereby the strongest durable bond (upon request and subject to certain condi-
is not necessarily decisive for tax residency. In tions).
such a case, a tax treaty may provide for a tie-
breaker to determine a person’s tax residence. Next to personal income tax, a person resident
in the Netherlands will generally also be subject
Personal Income Tax in the Netherlands to the Dutch compulsory social security system
In the Netherlands, personal income tax is levied (consisting of various insurance schemes). Con-
pursuant to the Personal Income Tax Act 2001. tributions to these insurance schemes are based
The taxable income (either worldwide income on earnings and are collected via the annual
and wealth for resident taxpayers or specific Dutch personal income tax assessment. Social
income and wealth with a Dutch nexus for non- security contributions are effectively capped
resident taxpayers) is allocated to three different annually at EUR9,713 (2021).
“boxes”, according to source:
The Netherlands grants levy rebates (heffing-
• box 1 – income from labour, business and skortingen), the most important of which are:
principal residence – rates vary from 37.10%
to 49.5% (2021); • the general levy rebate of maximum
• box 2 – income from substantial interest – flat EUR2,837 (2021) per year; and
rate of 26.9% (2021); and • the employment levy rebate of maximum
• box 3 – deemed income from savings and EUR4,205 (2021) per year.
investments – flat rate of 30% on deemed
3Law and Practice NETHERLANDS
Contributed by: Dirk-Jan Maasland, Rogier Ploeg and Jules de Beer, Loyens & Loeff
The taxable period is 1 January to 31 December; includes both dividends and capital gains, and
tax returns must be filed before 1 May the next is taxed at a flat rate of 26.90% (2021).
year. Delay for filing is possible upon request.
For non-residents, box 2 applies mutatis mutan-
Box 1 dis, provided that the company in which the non-
Income from past and present employment, resident holds a substantial interest has its place
business activities, certain “other activities” (eg, of effective management in the Netherlands. Tax
freelance work), certain periodic payments and treaties may prevent the Netherlands from levy-
deemed income from the principal residence is ing its full domestic rate.
taxed at a progressive rate in box 1 (see above).
Dividends
Income from employment is generally subject Dividends paid by a company with its place of
to wage-withholding tax. This “pre-levy” can effective management in the Netherlands are
be offset against personal income tax. Income subject to 15% dividend withholding tax, which
from business activities includes capital gains. can be offset against the Dutch personal income
Gains resulting from the normal administration of tax due. For Dutch personal income tax (and
private wealth consisting of immovable property dividend withholding tax) purposes, dividends
are usually not taxed in box 1. This would only and capital gains also include certain deemed
be different if those gains resulted from activities dividends and deemed capital gains.
going beyond normal asset management.
For example, a shareholder with a substantial
The principal residence is allocated to box 1. interest in a non-resident low-taxed (less than
Personal income tax is levied on the notional 10% profit taxation) or exempt portfolio invest-
rental value (the eigenwoningforfait, a certain ment company is subject to personal income tax
percentage of the residence’s value for tax pur- in box 2 on a deemed annual “dividend” (2021:
poses); capital gains are tax-exempt. If certain 5.69% of the substantial interest’s fair market
requirements are met, interest paid on a loan for value). The deemed dividend is reduced by actu-
the acquisition, improvement and maintenance al dividends received during the year. In addition,
of a principal residence can be deducted for a the Dutch government has published a legisla-
maximum period of 30 years (“mortgage interest tive proposal to also tax a deemed benefit from
relief” or hypotheekrenteaftrek). The rate against a substantial interest insofar as current account
which the deduction of mortgage interest in the shareholder loans were taken up in excess of
highest income tax bracket takes place will be EUR500,000 from a company in which a sub-
gradually reduced to 37.10% in 2023; it is cur- stantial interest is held.
rently limited to a rate of 43% (2021).
The legislation is due to enter into force in
Box 2 2023 (effective 31 December 2023). For the
In box 2, income and gains in connection with a EUR500,000 threshold loans taken up by the
substantial shareholding are taxed. A substantial shareholder, a spouse and certain close relatives
interest is a shareholding of 5% or more in a are aggregated. Under certain conditions, loans
company (including, depending on circumstanc- taken up by the shareholder for the acquisition,
es, options on shares, profit rights and economic improvement and maintenance of a principal
ownership). Income from a substantial interest residence are excluded.
4NETHERLANDS Law and Practice
Contributed by: Dirk-Jan Maasland, Rogier Ploeg and Jules de Beer, Loyens & Loeff
Capital gains deemed yield and effective tax rate – progres-
Examples of deemed capital gains are the repur- sively increases with a taxpayer’s net wealth.
chase of shares by a company, the liquidation
of the company, the inheritance of a substantial For resident taxpayers, the taxable base includes
interest and the transfer of the place of effective all tangible and intangible assets and second
management of the company out of the Neth- houses (the principal residence is taxed in box 1
erlands. – see above). Movable property for personal use
(eg, cars, yachts and art collections) is excluded
A deemed capital gain also arises when the from the taxable base, provided such property is
substantial shareholder emigrates from the not mainly held as investment. For non-resident
Netherlands. Upon emigration, the Dutch tax taxpayers, box 3 taxation is effectively limited
authorities will issue a protective assessment to Dutch real estate and direct or indirect rights
(conserverende aanslag) for the 26.90% (2021) therein. Debts connected to Dutch real estate
personal income tax due on the capital gain may be deducted.
deemed as realised. An interest-free delay for
tax payment for an unlimited period is granted For both resident and non-resident taxpay-
automatically (for emigration within the EU/EEA) ers, certain approved investments and savings
or upon request (for emigration outside the EU/ below a threshold may be excluded from the tax-
EEA; security must be provided). able base. A tax exemption of EUR50,000 (2021)
per year applies to every taxpayer individually;
The delay for tax payment is withdrawn, and a for tax purposes, partners (eg, spouses – see
protective assessment is (partially) collected, if above) are eligible for a double tax exemption.
(among others) the emigrated substantial share-
holder receives a dividend or realises a (deemed) The box 3 income tax system has been wide-
capital gain. The delay for tax payment is also ly criticised and the subject of multiple court
withdrawn on the emigrated taxpayer’s death. cases over past years, because of the use of a
Heirs can only request a further delay of pay- (relatively high) deemed yield in a period where
ment of tax to the extent that the substantial the (risk-free) market yields are historically low.
shareholding represents active business assets. As a result, taxpayers were confronted with an
income tax burden in box 3 of more than 100%
Box 3 of the actual yield.
In box 3, privately held savings and portfo-
lio investments are taxed at a flat rate of 31% In response, and following an adjustment of
(2021). The flat rate is applied to a deemed yield the system in 2017, the Dutch government
on the fair market value of the assets minus lia- announced a new framework with respect to
bilities on 1 January of each year (net wealth). box 3 late 2019, and the tax exemption and the
The actual income, gains and cash flow arising tax rate were increased in 2021. It is intended
from the assets are irrelevant for box 3. to result in a burden increase for taxpayers with
assets over EUR222,000. Subsequently, the box
The net wealth is allocated to a low-yielding 3 system will be revised as part of a complete
(deemed yield of 0.03% in 2021) and high- overhaul of the income tax system in the years
yielding (deemed yield of 5.69% in 2021) “return to come.
on investment class”. The allocation of the net
wealth to the high-yield class – and hence the
5Law and Practice NETHERLANDS
Contributed by: Dirk-Jan Maasland, Rogier Ploeg and Jules de Beer, Loyens & Loeff
Taxation of the Assets of a Trust or of the settlor if the settlor was a (deemed) Dutch
Foundation resident.
The Netherlands does not have trust law but
does adhere to the Hague Convention on the Expatriates
Law Applicable to Trusts and on their Recogni- For expatriates immigrating to the Netherlands
tion of 1 July 1985 (Hague Trust Convention). (incoming employees), it is possible to apply
The Personal Income Tax Act 2001 and Inherit- for a so-called “30% ruling”. Subject to certain
ance Tax Act 1956 regulate the tax treatment of terms and conditions, a 30% ruling allows for a
(foreign) trusts and trust-like entities (eg, founda- deduction of 30% of the incoming employee’s
tions), which mainly serve the personal interest income for deemed extraterritorial expenses.
of the settlor.
More importantly, the incoming employee can
If an individual taxpayer (the settlor) transfers opt to be treated as a non-resident taxpayer
assets and liabilities into such a trust (or trust- for box 2 and box 3. As a result, the incoming
like entity) without receiving economic entitle- employee will, in principle, not be taxed in the
ment rights (such as ownership of shares or Netherlands on:
profit sharing) in return, the transferred wealth
will be regarded as a “separate private estate” • a substantial interest in a company incorpo-
(SPE, or afgezonderd particulier vermogen/APV) rated and effectively managed outside the
to which the “SPE regime” applies. Netherlands; and
• private wealth, except for (rights related to)
Under this regime, the transfer of assets and lia- Dutch real estate.
bilities to such SPE for tax purposes is ignored.
The SPE’s assets and liabilities remain allocable A 30% ruling is valid for five years. This five-
to the settlor. The transfer of assets to a trust(- year period is reduced by the period (in months)
like entity) can therefore be tax-free, since such spent in the Netherlands ending in the 25-year
transfer is deemed not to have taken place. period prior to immigration. A 30% ruling grant-
ed before 2019 is valid for eight years.
Personal income tax is levied on the settlor (or
their heirs). Exceptions apply if, for example, a Non-residents
beneficiary receives a fixed interest (being a fixed Non-resident individuals pay tax on income and
economic entitlement). In this case, the benefi- wealth with a nexus to the Netherlands. Gener-
ciary is subject to personal income tax on the ally speaking, this income consists of income
fixed interest. The value of this interest is gener- from substantial interests held in Dutch resident
ally taxed in box 3 (depending on the nature of companies (box 2), Dutch real estate and direct
the assets and liabilities); the SPE regime does or indirect rights therein (box 3), and rights to
not apply to such a fixed interest. shares in the profit of an enterprise with its place
of effective management in the Netherlands (box
On payments made from the SPE to beneficiar- 1). The actual Dutch tax liability is subject to the
ies other than the settlor, gift tax is assessed application of a treaty for the avoidance of dou-
when the settlor is (deemed) resident in the ble taxation.
Netherlands. The beneficiaries must also pay
inheritance tax on trust assets upon the demise
6NETHERLANDS Law and Practice
Contributed by: Dirk-Jan Maasland, Rogier Ploeg and Jules de Beer, Loyens & Loeff
Tax Treaties lands at the time of their death. The inheritance
The Netherlands has concluded a significant tax is payable by the recipient. Dutch citizens (at
number of tax treaties, which, under Dutch law, the time of emigration and death) are deemed
override national (tax) legislation. As part of resident for a period of ten years after emigra-
the OECD BEPS project, the Netherlands has tion. The estate of a non-resident deceased per-
endorsed the Multilateral Instrument (MLI). son (either non-Dutch or Dutch but emigrated
more than ten years ago) is not subject to Dutch
The MLI applies to a large number of tax trea- inheritance tax.
ties concluded by the Netherlands and forms the
basis of (future) tax treaty negotiations. In light of Tax calculation
this development, it is expected that tax treaties For the calculation of gift and inheritance tax,
can no longer be invoked for structures/transac- assets are valued at fair market value. The (pro-
tions, which are mainly tax-driven and lack eco- gressive) rates for both gift and inheritance tax
nomic reality and substance. are the same:
Gift, Estate and Inheritance Taxes • up to EUR128,751 – 10% (spouses/children),
In the Netherlands, gift and inheritance tax is lev- 18% (other descendants), 30% (others); and
ied pursuant to the Inheritance Tax Act 1956. An • EUR128,751 and more – 20% (spouses/chil-
inheritance tax return must be filed within eight dren), 36% (other descendants), 40% (oth-
months of the death of the deceased. Postpone- ers).
ment is granted upon request. The tax must be
paid within six weeks of a notice of assessment. There are individual tax exemptions for both
inheritance and gift tax, which depend on the
If an heir living abroad receives property from relationship between the deceased or donor
a Dutch resident’s estate, the heirs living in the and the beneficiary. For inheritance tax, these
Netherlands are also liable for the payment of exemptions are as follows (in 2021):
the non-resident heir’s taxes.
• for partners – EUR671,910 (half of the cash
Declarations for gift tax must be filed within two value of pension rights derived by the partner
months of the end of the calendar year in which from the death of the deceased is deducted
the gift was made. from this amount; the minimum exemption is
EUR173,580);
Gift and Inheritance Tax • for children whose cost of living was, for the
Gift tax is payable on lifetime gifts made by a greatest part, paid by the deceased and who
(deemed) resident of the Netherlands. Regard- cannot be expected, within the coming three
less of their nationality, and for gift tax purposes years, to earn half of the income a physically
only, all persons who emigrate from the Nether- and mentally healthy person would earn –
lands are deemed resident for a period of one EUR63,836;
year after emigration. Dutch citizens (at the time • for other children and grandchildren –
of emigration and the gift) are deemed resident EUR21,282;
for a period of ten years after emigration. • for parents – EUR50,397; and
• for others – EUR2,244.
Inheritance tax is payable on the worldwide
property of a (deemed) resident of the Nether-
7Law and Practice NETHERLANDS
Contributed by: Dirk-Jan Maasland, Rogier Ploeg and Jules de Beer, Loyens & Loeff
For gift tax, the annual tax exemptions are (in To prevent tax avoidance, under certain condi-
2021): tions shareholdings in real estate companies are
deemed real estate for RETT purposes. This may
• for children – EUR6,604; and also include shareholdings in non-resident (hold-
• for others – EUR3,244. ing) companies if these shareholdings directly/
indirectly derive their value from real estate
Certain one-time increases apply – eg, for gifts located in the Netherlands.
related to the acquisition or renovation of a prin-
cipal residence (eigen woning) or used to repay Capital Gains Tax
a debt related to the principal residence (see The Netherlands does not levy a separate capital
2.6 Transfer of Assets: Vehicle and Planning gains tax, but certain capital gains may be sub-
Mechanisms). ject to Dutch personal income tax. These include
capital gains derived from a substantial interest
The Inheritance Tax Act 1956 provides for a (personal income tax in box 2 – see above) and
separate tax facility for business assets and capital gains realised as entrepreneur (personal
substantial shareholdings that represent busi- income tax in box 1 – see above).
ness assets: the business succession facilities
(bedrijfsopvolgingsfaciliteit or BOR – see 4.2 Dutch VAT
Succession Planning). Dutch VAT is charged on supplies of goods and
services in the Netherlands. The basic rate is
Taxation of the Assets of a Trust or 21% (2019). Certain supplies (eg, educational
Foundation services, medical services and financial servic-
As mentioned before, the Netherlands does not es) are VAT-exempt. A reduced rate of 9% (2019)
have trust law. The tax treatment of (foreign) applies to other supplies (eg, food, non-alcoholic
trusts and trust-like entities is regulated by the drinks, medicines and books) and services (eg,
Personal Income Tax Act 2001 and the Inherit- passenger transport, hairdressing and renting
ance Tax Act 1956 (see above under personal out holiday homes).
income tax).
Imported works of art may also be eligible for
Real Estate Transfer Tax the reduced rate.
The acquisition of Dutch real estate is subject to
real estate transfer tax (overdrachtsbelasting or 1.2 Stability of the Estate and Transfer
RETT) at a flat rate of 8% (commercial real estate) Tax Laws
or 2% (residential real estate). An RETT exemp- The gift and inheritance tax legislation in the
tion applies for people between the ages of 18 Netherlands is very stable. Amendments can
and 35 who acquire residential property that acts only be made after a thorough legislative pro-
as their principal dwelling, whereby the value of cess.
such property may not exceed EUR400,000.
RETT on the acquisition by resident beneficiaries At the start of its governing period, each govern-
of gifted real estate may be (partly) offset against ment presents a coalition agreement in which
gift tax; real estate acquired by inheritance is its long-term (tax) objectives and policies are
RETT exempt. announced. In addition, the Dutch government
announces its Tax Plan each year on Budget Day
in September. The Tax Plan provides an overview
8NETHERLANDS Law and Practice
Contributed by: Dirk-Jan Maasland, Rogier Ploeg and Jules de Beer, Loyens & Loeff
of all tax measures proposed by the government The Dutch tax authorities will subsequently
for the coming year and must be adopted by the exchange this information with the tax authori-
house of representatives and the senate. ties of the account holder’s country of residence.
Neither the present coalition agreement nor Automatic Exchange of Information between
the Tax Plan 2021 include significant changes Countries
to Dutch gift and inheritance tax. However, it BEPS Action 5 contains an OECD framework for
is anticipated that the Dutch government may the compulsory exchange of information as to
revise the Dutch business succession facilities, certain categories of rulings. The Netherlands
making them less attractive (see 4.2 Succession has committed itself to this OECD framework.
Planning). The Dutch tax authorities collect basic informa-
tion, such as the identity of the taxpayer, the
1.3 Transparency and Increased Global date of issuance of the ruling, the start date, the
Reporting identification of any entity likely to be affected
The Netherlands is involved in the US Foreign and a short summary of the content. This infor-
Account Tax Compliance Act (FATCA), the Com- mation will then be bilaterally exchanged with:
mon Reporting Standard (CRS) and various oth-
er multinational transparency initiatives. • the countries of residence of all related par-
ties; and
FATCA and CRS • the residence country of the ultimate parent
Based on FATCA legislation, Dutch financial company and the immediate parent company.
institutions need to register with the US Internal
Revenue Service (IRS) and report information to In the Directive on Administrative Co-operation,
the Dutch tax authorities about US reportable the EU also includes automatic exchanges of
accounts and accounts held by non-compliant information on “advance cross-border rulings”
foreign financial institutions. The reportable and “advance pricing arrangements” between
information includes name, address, US Tax EU member states. Contrary to BEPS Action 5,
Identification Number (TIN) account numbers the scope of the EU Directive is not limited to
and account balances of reportable accounts. A certain categories of rulings; only rulings and
non-US entity not qualifying as a financial institu- pricing arrangements concerning purely domes-
tion needs to disclose its substantial US owners tic situations are out of scope, and rulings and
or certify that it has none. pricing arrangements exclusively concerning
the tax affairs of one or more natural persons.
The Netherlands has also committed itself to The information to be exchanged under the EU
the CRS, under which financial institutions need Directive is comparable to BEPS Action 5 and
to identify their account holders. If it is estab- must be submitted to a central database to
lished that an account holder is a tax resident in which all EU member states have access.
another country and that country participates in
the CRS, the financial institution has to submit The information will not be available to the pub-
information annually about the account holder lic; upon request and when needed for tax pur-
and the account (such as investment income, poses, additional information may be provided
interest, account balances and capital gains). to another EU member state.
9Law and Practice NETHERLANDS
Contributed by: Dirk-Jan Maasland, Rogier Ploeg and Jules de Beer, Loyens & Loeff
UBO Register Upon request, access to UBO information can
Following up on the EU Anti-money Laundering be restricted to the public if the UBO is a minor
Directive, a law has been adopted in the Neth- or is otherwise legally incapable, or if the pub-
erlands (UBO Register Act) that implements a lication of UBO information would expose him
register in which the ultimate beneficial owners or her to a disproportionately high risk of fraud,
(UBOs) of certain corporate entities and other kidnapping, blackmail, extortion, harassment,
legal entities must be registered (UBO regis- violence or intimidation.
ter). Since 27 September 2020, these entities
are required to obtain, hold and register certain Draft proposal trust register
personal information on their ultimate beneficial On 26 April 2021, a legislative proposal for the
owners. Upon the UBO Register Act entering implementation of a UBO register for trusts
into force, existing entities have 18 months to (Trust register) was submitted to the Dutch par-
register their UBO(s). Newly incorporated enti- liament. Similar legal arrangements include the
ties will need to register their UBO information commonly used Dutch mutual fund (fonds voor
simultaneously with their registration. gemene rekening). The registration requirements
are applicable to a trustee that:
Private limited companies and public limited
companies, foundations, associations, mutual • resides or is established in the Netherlands;
insurance associations, co-operatives, limited or
partnerships and churches or spiritual organi- • resides or is established outside the EU; and
sations that are incorporated or established • acquires Dutch real estate on behalf of the
under Dutch law are all subject to registration. trust or enters into a business relationship
Although the definition of a UBO differs for each in the Netherlands on behalf of the trust; for
type of legal entity, in general an individual must example with:
be registered if he or she holds an economic (a) a financial institution;
and/or controlling interest of more than 25% (b) an accountant;
in the entity. If there is no such individual, all (c) a lawyer;
members of the senior management of the legal (d) a civil law notary; or
entity have to be registered (so-called “pseudo- (e) a tax adviser.
UBOs”).
The UBOs of a trust are the settlor(s), trustee(s),
The UBO register includes the personal infor- protector(s), beneficiaries or classes of benefi-
mation of a UBO, such as surname, month and ciaries and any other natural person ultimately
year of birth, nationality, country of residence exercising control over the trust. The Trust reg-
and the nature and extent of the beneficial inter- ister will be publicly accessible. Information to
est; this information will be publicly accessible be submitted is comparable to that of the UBO
in the Dutch Trade Register. Additional informa- register.
tion such as the UBO’s Citizen Service Num-
ber (Burgerservicenummer or BSN), a copy of The Trust register should have been imple-
their identity document and the date and place mented on 10 March 2020, but the Netherlands
of their birth will be accessible only to certain did not achieve the deadline. It is not known
competent (EU) authorities. when the Trust register will enter into force; this
depends, amongst other things, on the legisla-
tive process. After entering into force, trustees
10NETHERLANDS Law and Practice
Contributed by: Dirk-Jan Maasland, Rogier Ploeg and Jules de Beer, Loyens & Loeff
will have three months to register the UBOs of 2. SUCCESSION
trusts. After this transition period, trustees must
comply with the registration requirements within 2.1 Cultural Considerations in
one week. Changes of the UBO must also be Succession Planning
registered within one week after occurrence. This is not applicable in the Netherlands.
Mandatory Disclosure 2.2 International Planning
Based on the Mandatory Disclosure Directive, The Netherlands has entered into various tax
EU member states need to implement rules treaties in relation to personal and corporate
obliging EU-linked intermediaries (such as income tax (see 1.1 Tax Regimes). These tax
lawyers, tax advisers and bankers) and, under treaties may be affected by the MLI as of 1 Janu-
certain circumstances (eg, if the intermediary ary 2020.
involved is entitled to legal professional privi-
lege), the taxpayers themselves to report cer- The MLI is a multilateral tax treaty, pursuant to
tain arrangements to the Dutch tax authorities. which new provisions and amendments result-
These arrangements are potentially aggressive ing from the BEPS project – aimed at preventing
tax planning arrangements with a cross-border tax treaty abuses and (more generally) tackling
dimension and arrangements that are designed international tax avoidance – can be incorporat-
to circumvent reporting requirements like CRS ed into existing bilateral tax treaties. Among oth-
and UBO reporting. ers, these provisions and amendments include
anti-abuse measures, in short denying tax
Information that needs to be reported includes treaty benefits to cross-border structures that
the taxpayer’s (and intermediary’s) identity, a lack sufficient economic reality. These meas-
summary of the content of the reportable cross- ures may affect international family-owned busi-
border arrangement and details of the tax provi- nesses’ eligibility for tax treaty benefits. High net
sions on which the arrangement is based. The worth individuals making investments through
tax authorities will automatically exchange the (deemed) passive holding companies may also
information within the EU through a centralised be affected.
database.
The MLI will not affect Dutch gift and inheritance
In June 2020, the EU decided on a six-month tax treaties (see 1.1 Tax Regimes).
deferral of the filing and exchange obligations
under the Mandatory Disclosure Directive. 2.3 Forced Heirship Laws
Reportable cross-border arrangements whose Children of the deceased have forced heirship
first steps are implemented between 25 June rights (legitieme portie). They can be disinher-
2018 and 1 July 2020 should have been reported ited but may always make a monetary claim of
(or notified, as the case may be) before 28 Feb- 50% of the value of the share they would have
ruary 2021. received on intestacy. This claim needs to be
made within five years of the deceased’s death;
the forced heirship claim lapses after this five-
year period.
The children’s forced heirship rights only apply
with respect to the estate of their deceased
11Law and Practice NETHERLANDS
Contributed by: Dirk-Jan Maasland, Rogier Ploeg and Jules de Beer, Loyens & Loeff
parent. Therefore, for example, if the deceased for his or her maintenance (considering all
was married and the community of property circumstances).
regime applied, the children are in equal shares
entitled to a quarter of the total property of the 2.4 Marital Property
deceased and the deceased’s spouse, since Before 1 January 2018, the default marital prop-
their deceased parent’s estate comprised only erty regime in the Netherlands was full commu-
half of the total property. nity of property. This community included all
property acquired before or during the marriage,
A child who claims their forced heirship rights even if acquired by inheritance, legacy or gift,
does not become an heir but has a monetary unless the testator or donor had stipulated that
claim against the deceased parent’s estate. This the property was private property.
claim can be recovered from estate assets. If the
estate is insufficient to recover the entire claim, For marriages entered into on or after 1 January
the children can recover their claims from certain 2018, the default community of property is lim-
gifts that were made by the deceased, such as: ited to the assets acquired during the marriage
and excludes all property individually acquired
• gifts made within five years preceding the prior to the marriage, as well as all property
death of the deceased; acquired by inheritance, legacy or gift.
• gifts made to descendants; and/or
• gifts made with the intention of infringing Certain assets that are very closely connected
upon forced heirship rights. to a spouse (eg, compensation for disability)
are excluded from the community of property
The children may recover their claim from trust regime (in both the old and new regimes).
assets if the trust settlement is considered a
donation by the deceased. Children can collect End of a Marriage
their forced heirship rights six months after their If the marriage ends by the death of a spouse or
parent’s death. However, the parent’s will may by divorce, the community of property is auto-
contain a provision that the children can only matically dissolved. All assets must be divided
collect their forced heirship rights after the death equally between the surviving spouse and the
of their deceased parent’s spouse or registered heirs of the deceased spouse in case of death,
partner, or life partner with whom the parent or between the ex-spouses in case of divorce.
entered into a notarial co-habitation agreement. Entering into a community of property, either by
marriage or by amending marriage conditions
This provision can also apply if the deceased’s (see below) during the marriage, is not regarded
spouse, registered or life partner is not a parent as a gift that must be taken into account in deter-
of the children. mining the children’s forced heirship rights.
A disinherited spouse or registered partner also Prenuptial and Postnuptial Agreements
has some statutory rights: The spouses can agree that the default regime
does not apply (prenuptial or postnuptial agree-
• a claim of the usufruct of the family home and ment, or huwelijksvoorwaarden). A prenuptial or
household effects; and postnuptial agreement must be incorporated in
• a claim of the usufruct of other estate assets a deed and executed before a Dutch civil law
if the spouse or registered partner needs this
12NETHERLANDS Law and Practice
Contributed by: Dirk-Jan Maasland, Rogier Ploeg and Jules de Beer, Loyens & Loeff
notary, and may be amended during the mar- the transferor’s cost price for tax purposes is
riage. passed on to the transferee. A future (deemed)
capital gain will then also include the gain for
The spouses can freely negotiate a prenuptial which deferral was granted.
or postnuptial agreement and can, among other
things: 2.6 Transfer of Assets: Vehicle and
Planning Mechanisms
• exclude or include any or all of the prop- In addition to the general inheritance and gift
erty from the default community of property tax allowances mentioned in 1.1 Tax Regimes,
regime; a few specific exemptions exist to make the
• include a periodical settlement clause transfer of assets to younger generations more
regarding saved income after the household feasible.
expenses have been paid; and/or
• agree on a final settlement clause, accord- For Dutch gift tax purposes, a child of the donor
ing to which, at the end of the marriage by gets a one-time increase of their annual exemp-
divorce and/or death, the value of property tion to EUR26,881 if they are aged between 18
is settled as if the spouses were subject to a and 40 at the time of the gift. Alternatively, a
community of property. taxpayer may also opt for a one-time increase
to EUR105,302 if the gift relates to the acquisi-
2.5 Transfer of Property tion or renovation of a principal residence (eigen
In principle, the transfer of assets in box 1 or box woning) or is used to repay a debt related to the
2 is a taxable event for Dutch personal income principal residence. Opting for one of these one-
tax purposes (see 1.1 Tax Regimes). The trans- time increases rules out the possibility of opting
feror will be taxed on a (deemed) capital gain for the other later.
– ie, the difference between the cost price for
tax purposes of the transferred asset and the The Personal Income Tax Act 2001 and the Inher-
consideration (or at least the fair market value) itance Tax Act 1956 provide for the transfer of
received. business assets and substantial shareholdings
that represent business assets by the business
For the transferee, the cost price for tax pur- succession facilities (bedrijfsopvolgingsfaciliteit
poses of the acquired asset will be equal to the or BOR). These facilities are discussed further in
consideration (or at least the fair market value). 4.2 Succession Planning.
Hence, the transferee will only be taxed on future
(deemed) capital gains. Dutch tax legislation also provides for tax allow-
ances for qualifying country estates. The trans-
The Dutch Personal Income Tax Act 2001 pro- fer and possession of (shareholdings in) such
vides for several exemptions to this method of estates is – in whole or in part – exempt from
taxation. For example, subject to strict terms Dutch personal income tax, gift and inheritance
and conditions, the levy of personal income tax tax and real estate transfer tax. Country estate
may, upon request, be deferred in the case of holding companies are also exempt from corpo-
a business reorganisation (box 1) or transfer of rate income tax. The application of this exemp-
business assets or a substantial shareholding tion is subject to strict terms and conditions.
that represents business assets (see 4.2 Suc-
cession Planning). If such deferral is granted,
13Law and Practice NETHERLANDS
Contributed by: Dirk-Jan Maasland, Rogier Ploeg and Jules de Beer, Loyens & Loeff
2.7 Transfer of Assets: Digital Assets The main characteristics of a Dutch foundation
Dutch law does not provide specific rules regard- are that:
ing the succession of digital assets. Cryptocur-
rency is considered to be an asset that can be • it does not have members or shareholders;
transferred from one person to another, and can • the aim is to realise the objectives (which
be left to a beneficiary in a will. Dutch law does cannot contravene the law) as described in
not provide a solution regarding the practical the articles of association for which the foun-
issues that the transfer of digital assets may dation uses its capital; and
have, such as unknown passwords. • it only has one mandatory corporate body, its
board, but can have other bodies such as a
According to the Dutch tax authorities, for Dutch supervisory and/or advisory board.
personal income tax purposes, income from
cryptocurrency may be taxed in box 1 if the gen- Dutch Foundations as Fiduciaries
erated income is regarded to be income from Dutch foundations are often used as fiduciary
business activities or other activities that are foundations (STAK). When used as such, assets
taxed in box 1. If the income is not taxed in box (eg, shares in a company, an art collection or
1, a deemed return over the fair market value of investments) are transferred to the foundation
the cryptocurrency will be taxed in box 3. to be held in administration, against the issu-
ance of depository receipts (certificaten) by the
If cryptocurrency is transferred by way of inherit- foundation. This creates a separation between
ance or donation, inheritance tax or gift tax will the legal title to (juridische gerechtigdheid) and
be levied if the holder of the cryptocurrency was the beneficial ownership of (economische ger-
resident or deemed resident in the Netherlands echtigdheid) the assets.
either at the time of their death or at the time of
the donation. The tax will be levied over the value The relationship between the STAK and the
of the cryptocurrency at that moment and is pay- depository receipt holders is governed by the
able by the beneficiary. See 1.1 Tax Regimes. trust conditions (administratievoorwaarden),
which are often established by the board of the
foundation and imposed on anyone acquiring
3 . T R U S T S , F O U N D AT I O N S depositary receipts.
AND SIMILAR ENTITIES
Trust foundations and charitable foundations are
3.1 Types of Trusts, Foundations or often used in wealth and charitable planning.
Similar Entities
In the Netherlands, a foundation is often used for 3.2 Recognition of Trusts
tax and estate planning purposes. A foundation The Netherlands does not have trust law. How-
under Dutch law is a legal entity, meaning that ever, as the Netherlands adheres to the Hague
the liability of persons involved with it (eg, board Trust Convention, it does recognise foreign trusts
members) is limited. if they are created according to the rules thereof.
A foundation is incorporated through the execu- In principle, trust assets are not affected by
tion of a notarial deed before a Dutch civil law succession law (including forced heirship rules).
notary, containing the foundation’s articles of However, it is theoretically possible that the set-
association. tlement of assets into a trust could be regarded
14NETHERLANDS Law and Practice
Contributed by: Dirk-Jan Maasland, Rogier Ploeg and Jules de Beer, Loyens & Loeff
as a gift that harms forced heirship claims. This the assets and liabilities it holds in administra-
could result in a claim by a forced heir to the tion, and has no equity or taxable income of its
trust assets. own. As such, a STAK is not taxed separately.
Under the Hague Trust Convention, a trust may If structured properly (through articles of associ-
not need to be recognised if it harms forced heir- ation and trust conditions), a STAK is considered
ship entitlements. fully transparent for tax purposes. Its depositary
receipts are then fully assimilated to the underly-
3.3 Tax Considerations: Fiduciary or ing assets. However, if under the trust conditions
Beneficiary Designation it is no longer possible to identify the underlying
Trust Foundation assets with the depositary receipts, a deemed
For Dutch personal income tax and gift and transfer of assets may be recognised for Dutch
inheritance tax purposes, a Dutch trust founda- tax purposes.
tion (or other trust/trust-like entity) is generally
qualified as an SPE, to which the SPE regime Because of its characteristics – not taxed sepa-
applies (see 1.1 Tax Regimes). Under this rately, flexible articles of association (see 4.1
regime, the transfer of assets and liabilities for Asset Protection) and the assimilation of its
personal income tax purposes is ignored, and assets and liabilities to the depositary receipts
the assets and liabilities remain allocable to the – a STAK is often used in wealth/holding struc-
donor. As a result, the foundation (the trustee) is tures for family governance purposes.
not taxed separately.
3.4 Exercising Control over Irrevocable
The SPE regime does not extend to Dutch cor- Planning Vehicles
porate income tax: for the purpose of this tax, A Dutch foundation can be used as a civil law
the assets and liabilities of a trust foundation are trust. This means that an individual donates
not allocated to the donor. It should therefore be assets to the foundation and imposes an obli-
verified whether the trust foundation is subject gation on the foundation to distribute the assets
to corporate income tax. This would only be the and the income arising therefrom to certain ben-
case insofar as a trust foundation carries on a eficiaries. The foundation becomes the legal
business enterprise. owner of the assets, although it only holds them
temporarily.
If the trust foundation’s assets and liabilities
consist of portfolio investments or mere share- The foundation can be given discretionary pow-
holdings, it would generally not be subject to ers to decide when and how it makes distri-
corporate income tax. butions to its beneficiaries. The individual can
retain some control by being a board member of
Fiduciary Foundation the foundation or by having the power to remove
A Dutch fiduciary foundation or STAK (see 3.1 and appoint board members. The donation to
Types of Trusts, Foundations or Similar Enti- the foundation can also be revocable.
ties) is considered to be the legal owner of the
assets and liabilities transferred to it. Benefi-
cial ownership lies with the depositary receipt
holders. Therefore, a STAK has a liability to its
depositary receipt holders equal to the value of
15Law and Practice NETHERLANDS
Contributed by: Dirk-Jan Maasland, Rogier Ploeg and Jules de Beer, Loyens & Loeff
4 . F A M I LY B U S I N E S S • Assets and shareholdings are valued as a
PLANNING going concern. If the liquidation value of a
business exceeds the going concern value,
4.1 Asset Protection the difference can be conditionally tax
In the Netherlands, a STAK (see 3.1 Types of exempt.
Trusts, Foundations or Similar Entities) is • EUR1,119,845 of the going concern value
often used in estate planning – eg, as a method and 83% in excess of EUR1,119,845 of the
to safeguard continuity within a company. By going concern value can be conditionally tax
transferring the shares in the family business exempt.
(the top holding company) to a STAK against the • For the tax on the remaining 17% of the going
issuance of depositary receipts, beneficial own- concern value in excess of EUR1,119,845, a
ership is effectively separated from legal owner- conditional extension for payment for a period
ship. This allows for a transfer to the next gen- of ten years can be obtained.
eration (eg, by donating the depositary receipts)
while remaining in control of the family business An important condition is that the business must
through the board of the STAK. be continued for a period of five years after the
gift or the death of the deceased.
Dividends and future capital gains derived from
the shares will accrue to the depositary receipts In addition, the levy of Dutch personal income
holders without any inheritance or gift tax being tax may be (partly) deferred if certain require-
due. ments are met. Deferral is only possible for the
transfer of business assets (box 1) and substan-
The shareholder can strengthen the continuity of tial shareholdings that represent business assets
the family business by making specific arrange- (box 2). For both boxes, the main requirement is
ments regarding the constitution of the board that the successor has been working with the
of the STAK once the shareholder has resigned enterprise for at least 36 months prior to the
as board member. Because Dutch law contains transfer. For business assets and substantial
very few requirements in this respect, the con- shareholdings that represent business assets
tents of the articles of association of a STAK can acquired from an estate at death, the “36-month
be tailored to a great extent (especially regarding requirement” does not apply.
the organisation and voting powers).
There is often discussion whether business suc-
4.2 Succession Planning cession facilities can be applied to real estate
Business Succession portfolios (including substantial shareholdings
The Personal Income Tax Act 2001 and the in real estate companies). In most cases, the
Inheritance Tax Act 1956 provide for a tax facility Dutch tax authorities take the position that real
for the transfer of business assets and substan- estate portfolios are to be considered passive
tial shareholdings that represent business assets investment assets (instead of business assets)
as part of a business succession: the business to which business succession facilities can-
succession facilities (bedrijfsopvolgingsfaciliteit not be applied. Recent case law indicates that,
or BOR). Subject to strict terms and conditions, under certain circumstances, this point of view
the following inheritance tax and gift tax charac- may be too strict; if certain requirements are
teristics apply to the transfer of such assets and met, real estate portfolios could qualify as busi-
shareholdings. ness assets.
16NETHERLANDS Law and Practice
Contributed by: Dirk-Jan Maasland, Rogier Ploeg and Jules de Beer, Loyens & Loeff
Those qualifying assets should therefore be eli- 5 . W E A LT H D I S P U T E S
gible for business succession facilities. Never-
theless, the qualification of real estate portfolios 5.1 Trends Driving Disputes
as business assets or as passive investments In general, the number of disputes concerning
continues to be a topic of discussion with the Dutch inheritance law is limited, although grow-
tax authorities. ing. This is mainly due to the fact that the inherit-
ance law is relatively modern (the current legis-
A recent policy paper by the Dutch Ministry of lation was introduced in 2003) and a deceased
Finance suggests that the business succession has to dispose of their estate by notarial deed.
facilities may be cut back in the future. No leg- To execute such a deed, a Dutch civil law notary,
islative proposal to this end has been published. among others, has to verify a person’s capacity
and whether that person’s wishes are correctly
4.3 Transfer of Partial Interest incorporated in his or her will.
For Dutch income tax and gift and inheritance
tax purposes, a partial interest in an entity is tak- A growing number of disputes relate to the use
en into account for at least its fair market value (or abuse) of a durable power of attorney (see
at the time of transfer. 8.1 Special Planning Mechanisms).
The fair market value of listed securities is based Regarding Dutch tax law, wealth disputes, among
on the closing price as shown in the Official List others, concern the Dutch personal income tax
of a certain exchange on the day prior to the on a deemed annual yield in box 3 (see 1.1 Tax
transfer. For other (partial) interests, the fair mar- Regimes). Box 3 taxation has been subject to
ket value has to be determined on a case-by- much (social) debate. For years up to and includ-
case basis. A taxpayer may take into account ing 2012, the Dutch Supreme Court ruled that
a discount for lack of marketability and control, the deemed annual yield is not contrary to the
for example, if the shareholding represents a “right of peaceful enjoyment of possessions”.
minority interest or is subject to a right of first For 2013 to 2016, the Supreme Court recently
refusal (aanbiedingsregeling). A blocking clause ruled that, even if the deemed yield would result
(blokkeringsregeling) contained in the articles of in a breach of this right, said breach could not
incorporation is generally not considered to be be remedied by the judiciary; relief would only
of relevance. be available to individual taxpayers in certain
exceptional cases. In 2017, box 3 taxation was
It should be emphasised that case law on this changed to its current form, in respect of which
point is highly casuistic. Whether a discount court cases are pending.
may be taken into account therefore strongly
depends on the facts and circumstances of each There are also tax disputes regarding the appli-
case and is likely to be a topic of discussion with cability of Dutch business succession facilities
the Dutch tax authorities. to real estate. Reference is made to this in 4.2
Succession Planning.
5.2 Mechanism for Compensation
This is not applicable in the Netherlands.
17Law and Practice NETHERLANDS
Contributed by: Dirk-Jan Maasland, Rogier Ploeg and Jules de Beer, Loyens & Loeff
6. ROLES AND completed a master’s or post-doctoral pro-
RESPONSIBILITIES OF gramme or obtained a PhD at a designated
FIDUCIARIES educational institution abroad), and certain sci-
entific researchers. Certain professions may only
6.1 Prevalence of Corporate Fiduciaries be practised in the Netherlands if the employee
This is not applicable in the Netherlands. has the correct certificate.
6.2 Fiduciary Liabilities If a foreign national stays in the Netherlands
This is not applicable in the Netherlands. for a period of more than four months, they are
obliged to register with the Dutch Municipal
6.3 Fiduciary Regulation Personal Records Database (Basisregistratie
This is not applicable in the Netherlands. Personen or BRP). In order to obtain (or regain)
Dutch citizenship, an individual who has reached
6.4 Fiduciary Investment majority has, in general, two alternative routes
This is not applicable in the Netherlands. to follow: the “option procedure” or “naturalisa-
tion”.
7. CITIZENSHIP AND The option procedure is only available to certain
RESIDENCY foreign nationals but is the fastest and easiest
way to become a Dutch citizen, taking approxi-
7.1 Requirements for Domicile, mately three months to complete. For an exam-
Residency and Citizenship ple, an individual may qualify for this procedure
Foreign nationals who wish to reside in the Neth- after living in the Netherlands for a certain period
erlands for more than three months need a resi- of time or if they are a former Dutch citizen.
dence permit. An application must be filed with
the Immigration and Naturalisation Service (IND). The process of naturalisation may take up to one
Most foreign nationals need to apply for a regular year. Official documents – such as a passport
provisional residence permit (MVV) before enter- or residence permit, marriage certificate and a
ing the Netherlands. child’s birth certificate – need to be submitted,
along with a civic integration certificate.
For a stay of less than three months, no resi-
dence permit or MVV is required; a visa will 7.2 Expeditious Citizenship
suffice. Specific rules apply for EU (except for There are no expeditious means for an individual
Romanian and Bulgarian) nationals, European to obtain Dutch citizenship.
Entrepreneurial Region (EER) nationals and
Swiss nationals, who do not require a permit.
8. PLANNING FOR
Employers are required to obtain a work per- M I N O R S , A D U LT S W I T H
mit before hiring a non-EU employee. In most DISABILITIES AND ELDERS
cases, this work permit will only be granted if
it is established that the employer was unable 8.1 Special Planning Mechanisms
to find suitable personnel in the Netherlands or Anyone under the age of 18 in the Netherlands
elsewhere in the EU. An exemption applies to is considered a minor. A minor can own assets,
highly skilled migrants (eg, a migrant who has which are managed by their parents or guard-
18NETHERLANDS Law and Practice
Contributed by: Dirk-Jan Maasland, Rogier Ploeg and Jules de Beer, Loyens & Loeff
ian. A testator or donor can also appoint some- If an adult cannot administer their own proper-
one other than the minor’s parents/guardian as ty, a fiduciary administrator can be imposed to
administrator of the assets. administer that adult’s property.
In the case of loss of capacity, a person can be A durable power of attorney, given before the
put under legal restraint by a sub-district court. loss of capacity, remains valid. Although foreign
In this case, a legal guardian is appointed to rep- powers of attorney are generally recognised, a
resent the incapacitated person. A sub-district notarial power of attorney is required for certain
court can also impose a fiduciary administrator legal acts, such as mortgaging immovable prop-
if an adult cannot administer their own property. erty in the Netherlands. See 8.1 Special Plan-
ning Mechanisms and 8.2 Appointment of a
To plan for loss of capacity, a “living will” can Guardian.
be made. A living will usually provides for cer-
tain powers of attorney and may also provide
for certain medical provisions (such as a “do not 9. PLANNING FOR NON-
resuscitate order”). T R A D I T I O N A L FA M I L I E S
A durable power of attorney, granted before the 9.1 Children
loss of capacity, remains valid. Foreign powers The laws in the Netherlands stipulate that the
of attorney are also generally recognised. For determining factor for a child’s legal position
certain legal acts, such as mortgaging immova- is whether “legal family ties” exist between the
ble property in the Netherlands, a notarial power child and the deceased.
of attorney is required.
Legal family ties between the child and their
8.2 Appointment of a Guardian mother arise through birth or adoption. Legal
In the case of loss of capacity, a person can be family ties between the child and their father
put under legal restraint by a sub-district court. arise through:
A sub-district court order is also required if an
adult is to be put under fiduciary administration. • birth within wedlock (or during a registered
civil partnership);
The parents or guardian of a minor (a child under • formal recognition of the child by the father;
18) need a sub-district court’s authorisation for • judicial establishment of paternity; or
certain legal acts that significantly affect the • adoption.
minor’s property, such as donations on behalf
of the minor or the disposition of assets other If a child has legal family ties with a parent,
than money. regardless of how they arose, the child is an
intestate heir and is entitled to a statutory share
8.3 Elder Law (see 2.3 Forced Heirship Laws).
In the case of loss of capacity, a person can
be put under legal restraint. A legal guardian is Biological children who have no legal family ties
appointed to represent the incapacitated per- and stepchildren are not intestate heirs and are
son. To plan for loss of capacity, a person can not entitled to a statutory share. They can, how-
also make a living will. ever, be appointed as beneficiaries in a will.
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