Death and Liability
When we discuss liability in the event of death, we quickly think about the cause of death and if a person caused it. Even after death, however, there are many people who may have been involved who might be found liable for certain aspects of a person’s life, such as the heir who must deal with any debts left over, or a notary or executor who has made a mistake with the will of the deceased.
Wills and liability
Possessions of a deceased person are transferred to their heirs. An heir is disclosed by law in terms of family members, but it can be outlined in a person’s will that they wish for their inheritance to pass to a different person. The notary plays an important part in this.
Duties and liability of the notary
A notary draws up what a person wants in their will, and what happens to their property, belongings, and debts after their death. Any person over the age of 16 can draw up a will through a notary.
Information at the Central Register of Wills (CTR)
Once a will has been drawn up, the civil-law notary registers it with the Central Register of Wills (CTR), with the exact date it was drawn up. Only wills drawn up in the Netherlands are registered here. The contents of the will are not in this register – the notary must be contacted for this.
Contents of the will
You can insert whatever you wish into your will, with a wide array of wishes noted. For example, you can give money to a charity, disinherit a child, and so many other wishes. You can also state who you wish the executor of the will to be. This person will help with funeral wishes and the splitting of inheritance. If you have not specified an heir, the law will determine it, with the so-called ‘death inheritance’ dividing the heirs into four groups:
Spouse or registered partner and the children and grandchildren
Parents, siblings or the children of siblings
Grandparents and their children (uncles, aunts, cousins)
Great-grandparents or their children (great-uncles, great-aunts, second cousins and second cousins).
Liability of the notary
A great responsibility rests with the notary and they can be held liable for missing a part of the inheritance.
Duties and liability of the executor
An estate must always be settled. There are creditors to be paid, property to be sold, shares to be liquidated. The executor is responsible for this. An executor is free to accept or decline the tasks, so it might be that the testator designates different executors. All inheritance is handled by the executor, but they can engage a notary to handle all issues on their behalf. Once all duties related to the will and the deceased are completed, he must indicate to the heirs what has been done and provide an explanation.
Remuneration of the executor
The executor is entitled to remunerations, which is legally set at 1% of the value of the deceased’s estate on the date of death. The will may provide a lower (or higher) remuneration. If there are several executors, this reward must be shared.
Liability of the executor
Accepting the role is not without risks. An executor can be held liable by the heirs or the tax authorities for instance (as the executor must arrange the declaration for the inheritance tax – it is recommended this is outsourced to an administrative office to remove the liability as stated by The Collection Act).
Acceptance and rejection of inheritance
The heirs are free to accept or reject the inheritance.
Pure acceptance of inheritance
A pure acceptance means all assets and debts of the deceased are passed to the heir. Either a declaration is registered with the court of the last place of residence of the deceased or one acts as an heir. There is risk to this, for instance if the debts exceed the inheritance, as debts must be paid.
Beneficial acceptance of inheritance
This is where assets are received, and the person must settle the debts. If the debts exceed the assets, the heir must settle to the extent that there are assets but does not need to pay the remaining debt.
The role of liquidator
There is an important responsibility where a liquidator should not personally pay any debts that exceed the asset, unless: they prevent payment of the debt and can be blamed for it; they deliberately hide, take away, or misplaces assets; they seriously fail to fulfil the obligations.
Reject the legacy
When rejecting the inheritance, a person chooses not to be an heir and will receive no debts or assets.
Death and loss of life
If another person is liable for the death of the deceased it could be that a third party will pay compensation.
Compensation for next of kin
The person who has died will not receive compensation of course, as they are dead, but there are four types of compensation that can be paid:
Loss of livelihood where a limited number of surviving family members are entitled to compensation to cover loss of maintenance, such as the spouse, registered partner, or children;
Affection damage, a compensation in place since 2019 that covers the damage one experiences from the loss of someone with whom they had an affection bond. There are fixed amounts ranging from 15,000 Euro to a spouse for a serious and permanent injury to 17,500 Euro for death and serious injury from a crime and 20,000 Euro for death by felony;
Shock damage – to cover the psychological damage caused by losing someone in a fatal accident, a traffic accident or failure of a safety standard, that could cause post-traumatic stress;
Burial or cremation costs, where the person liable for the death is obliged to reimburse the cost of the funeral and burial or cremation.
Liability for a death
The classic liability rules apply here, where a person has committed a mistake and caused damage to another person (in this case death). A traffic accident caused by a driver going down a one-way system the wrong way, or a stabbing in the street are two examples of liability.
Liability of the employer
When an employee (or sometimes a self-employed person) dies at work, the employer can be liable if safe working conditions have not been met.
Overview of employment law in the Netherlands →
Liability for animals
Animals can injure or even kill people. A kick from a horse or a dog attack can have nasty consequences. The owner of the animal can be held liable under certain conditions.
All about animal liability →
Liability for products
The manufacturer of a product that has caused harm or death through a faulty product or service can be held liable.
All about product liability →
Liability in case of a train accident
A train accident causing death can be complicated. Was the person walking recklessly on the track, was the signage wrong, or did the doors not work properly preventing escape from an accident?
Everything you need to know about liability in the case of train accidents →
Frequently asked questions about death and liability
What is a living will?
With a living will, someone is appointed who will make decisions when you are no longer able to do so yourself, for example because you are in a coma. The designated person can then decide on medical treatment, financial matters, pets, and so on. It is not mandatory to go to a notary to draw up a living will, but this is recommended.
How much does it cost to have a will drawn up by a notary?
The costs differ per notary and of course also depend on the specific wishes. A complex will costs more than a simple will. On average, having a will drawn up will cost between 400 and 800 Euros.
What is a codicil and what can I arrange with it?
A codicil is a will that can be drawn up in person, without the intervention of a notary. Small things can be arranged in a codicil, such as funeral wishes. For things with greater value, the notary must be called upon. When drawing up a codicil, it is important that the text is handwritten, that each page has a signature and that the date of writing is clearly written on paper. In addition, make sure that the codicil is found after death. You can also submit it to the notary.
I live with my partner. Am I automatically the heir of my partner in the event of their death?
No, but it is possible to arrange several matters in the cohabitation contract. For example, a residence clause can be included. The survivor will then receive all items jointly owned. To inherit more of the deceased possessions, a will must be drawn up.
How is the inheritance divided if the testator only has heirs in the second group?
In the second group we find the parents, brothers, and sisters. The inheritance is divided by the number of heirs. For example, if there are five heirs, each heir will in principle receive 1/5. However, there are still some corrections. For example, if the parents receive less than a quarter of the inheritance, their share will be increased to a quarter and the shares for the other heirs will be reduced. Full siblings are also favored over half-brothers and half-sisters. For example, a full brother or sister must always receive twice as much as a half-brother or half-sister.
Can parents disinherit their child?
Yes, and then the child is skipped over. This means that his or her children (the grandchildren) take over the inheritance. If they too are not allowed to receive an inheritance, this must also be included in the will. In addition, the legitimate portion to which each child is entitled must be considered. One cannot be disinherited from this legitimate portion. The legal portion is approximately half of the portion that the child would normally have received if there had been no will. However, it can be stipulated in the will that the child can only claim the legal portion when the testator's partner has also died.
I have accepted the inheritance and now it appears that there are debts. Can I revoke my decision?
No, the decision is in principle always final. There is an exception to this, however, for those who can prove that they have done proper research and where a debt still emerges afterwards. In such a case, it is still possible to switch from a pure acceptance to a beneficiary acceptance. This must be requested from the subdistrict court judge and within three months after the discovery of the debt. Keep in mind that the subdistrict court judge will not readily agree to this because the obligation to investigate goes very far.
Does an inheritance affect my social security benefits?
Yes, but each municipality has its own rules about this. In general, people will stop the benefit when they suddenly have savings due to the inheritance. In that case, you must first use up the inheritance until you are below the asset limit, after which you will again receive a benefit. It can be tempting not to accept the inheritance so that brothers and sisters, for example, receive a larger share, but be careful with this. In many municipalities, this is a prejudicial act. As a result, the municipality can stop or reduce the benefit.
What about the acceptance or rejection of a foreign inheritance?
In the case of an inheritance within the European Union, it is possible to accept the inheritance in the Netherlands by making a statement at the registry of the place of residence or, if this inheritance also contains Dutch assets, at the court in The Hague. In any case, foreign law will in principle regulate the inheritance and determine what and how it will be inherited, unless the testator has validly opted for the applicability of Dutch law. In other words, this quickly becomes very complex. Therefore, call on a civil-law notary who will inform you about this.
Can I just become an executor?
In the first instance, it is required that the testator has chosen the executor. In addition, the executor must be over the age of 18 at the time of acceptance, must not be under guardianship or have an administrator and must not be bankrupt or undergoing debt restructuring with the municipality. All this, of course, to protect the legacy.
Does an inheritance affect my pension?
No, an inheritance never affects a pension. There are also no consequences for an AOW benefit.
What happens to the inheritance if all heirs refuse?
Then the money or the debt goes to the Dutch state.