PLAN OF THIS BLOG on November 12, 2007
A. Model:
- 11 clauses relating to "CLAUSE FOR OPTION ON THE SHARING OF COMMON HERITAGE" more clause to the terms of this clause. This text is part of a computing program that can be found on www.successierecht.be
- Discussion and Draft deed of fame after death (if the optional clauses)
B. Cases
C. Reviews and Bibliography
D. Question to Minister of Finance:
Tax Administration accepts the attribution clause community through loads
E. Blogs or sites NEW LAWS
A.
- Articles ...
ITEM # - OPTION CLAUSE ON SHARING OF COMMON HERITAGE .
The parties agree upon dissolution of the common heritage by the death of a spouse and to the extent that at the time they are neither separated but not in divorce proceedings, whether or not generation after the marriage, that common heritage, at the election of a surviving spouse, divided as follows and in the manner stipulated in article # following: 1 °
either: all community property, both movable and immovable, in return for all full ownership to the surviving spouse.
2 ° is: all community property, both movable and immovable, shall revert to the surviving spouse for half usufruct and the other half freehold.
3 ° is: common property shall revert to the surviving spouse as follows:
a) personal property, without exception or reservation for all freehold;
b) real property: for half and full ownership the other half in usufruct;
4 ° is: the common property shall revert to the surviving spouse as follows:
a) movable and family housing: full ownership.
b) the balance of real property, usufruct for half and half outright.
5 ° either: the surviving spouse has a choice - before sharing community - take priority and full ownership family housing, and furniture furnishing the lining and any other movable property of the community, or only one or more of these goods at its discretion. This option clause may contain for example: "the family home with full ownership and / or furniture furnishing the lining and / or special automobile freehold and / or bank accounts in full ownership etc. .. .. "
6 ° is: the community will be shared according to the rules laid down by the Civil Code under articles 1445 and 1446, containing the preferential allocation of the family home against cash payment with furniture and furnishing / or building which is used to practice with the professional tools found there. This option clause does, however, limited to family housing and / or building professional. The surviving spouse has the right to take on any real estimate common follows the same rules as those contained in Articles 1445 and 1446.CC
7 ° is: all community property, both movable and immovable, will return for all in usufruct to the surviving spouse.
8 ° is: common goods belong to the surviving spouse as follows:
a) property, without exceptions or reservations: for all freehold;
b) real property: for all in usufruct;
9 ° is: common goods belong to the surviving spouse as follows:
a) property, without exceptions or reservations: half full ownership and the other half in usufruct.
b) real property: for all in usufruct;
10 ° is: Clause option with care. The surviving spouse will be entitled to designate the common property and common debts that he wants to understand in his lot, whatever their value. If the prize awarded to the surviving spouse and the rights it has over the common property, the surviving spouse will be liable the estate of the first dying of a cash payment equal to what he has collected in excess. The payment of this payment may be made at any time deemed necessary by the surviving spouse, in several parts, either in cash or by abandonment of community property to heirs. The payment will be required until the surviving spouse is alive and he will be required no guarantee for this payment. The payment is due and collateral, may however be continued in the following cases: a) if the survivor is no longer able to manage its assets itself, or b) if the survivor is in a state of bankruptcy or insolvency. This payment is not productive interest.
11 ° is: marriage covenant with load. The survivor will be entitled to resume its share in all community property and joint debts when sharing the marital community, whatever their value. The survivor in this case will be indebted to the estate of the first dying of a cash payment corresponding to what the survivor is collected in addition to its rights in the marital community. For liability and payment of this payment, apply the same rules as those listed above under option 10 °. This cash payment will not bear interest.
ITEM # - TERMS OF THE CLAUSE OPTION.
* The surviving spouse shall exercise its option by written statement or declaration of succession.
* This option may only be validly exercised at the earliest after expiry of a period of one month after the death of the first dying spouse. In case of death of the surviving spouse in the first months of dying, the parties agree that sharing will take place in accordance with the provisions in Option 2 of the preceding article.
* This option can be exercised effectively only by the survivor himself and not by an agent nor any representative.
* This option must be held no later than the expiration of a period of five months from the death of the first dying. If the option was not exercised within that period and in the forms required for any reason whatsoever, the parties agree that the provisions of Option 2 to the preceding article shall apply.
* If a divorce is pending or if the spouses are separated because at death, the provisions of option 6 of the preceding Article shall apply.
-Act notoriety after death after a marriage contract multiple choice ...
STATES:
What in the presence of a community marriage contract clauses providing for multiple-choice (including the provision known Casman)?
Indeed if we learn the true devolution of the estate, the release of assets will be promptly in most cases impossible, the heirs - and their lawyer - in front of the calculations required thought (within three to four months is also often provided in the marriage contract or its amendment). Meanwhile
financial operations are needed to address ... to this period of reflection, and have blocked funds as soon as possible, should be considered a new submission to the act of posthumous fame
QUESTION:
Is it not possible to consider a deed of fame outlining the steps taken by the husband and saying that whatever the choice of a surviving spouse, there can be other beneficiaries that ... (the surviving spouse and children, etc..) and so the assets can be released valid on the signature of ALL those people?
First answer:
Faced with this situation, I said the surviving spouse need to first make his choice before I can establish the act of notoriété.Je do not think the bank will simply declaring an act of awareness that there is "one hundred thousand choice" possible . The bank wants to know who can give the money, right? So on the basis of such an act of notoriety, it will not release anything.
Second answer: Why
bank could it not "just" an act of awareness which leaves open the choice of the surviving spouse if the notary certifies that "all the heirs above can be put in possession assets of the estate. "
Whatever the distribution of assets if the bank returns them to the heirs designated him sign a release together.
NEW QUESTION:
It also seems that the financial institution can not deny the act of notoriety which, after describing the various choices of the surviving spouse would list all potential heirs according to the choice to perform ultérieurement.La Bank receive - signed by all - a transfer order partial profit (normally) the surviving spouse, write "partial" because it does not seem happy in such a case, to "liquidate" ALL assets but only those for the surviving spouse to live normally, etc. But it seems to me that there would be a problem to solve if for some reason or another, the account was liquidated in whole or substantial part thereof. The heirs 'potential' should refer to the act of notoriety and confirm that their order is unrestricted with respect to the Bank between them but does not impair the surviving spouse's election to operate within x months décès.Une after another possibility would be (?) to involve all the heirs' potential "in the act of notoriety, also act as a proxy becoming true with respect to the Bank to one of them towards payment of the account ...
at least TENTATIVE CONCLUSION ...:
It seems that if the problem seems easily solved with respect to the Bank, a development essential prerequisite is at least with respect to the said potential heirs.
And here is a text ... (capable of improvement: leon.dochy @ skynet.be )
Act reputation: to receive preference in minutes and with a clause like this:
died What ... X (e) ... ... leaving the heirs to his surviving spouse and children called, is ...., Thus waiting for a choice to make by the survivor of an attribution clause provided in the said provisions of marriage, the spouse and children are in any event the only eligible for any rights in the estate, with their signature to all financial institutions must release assets, being assured that they are anyway collected by those entitled to the said succession ...
B.
JURISPRUDENCE
Judgement of the Court of First Instance of Hasselt dd. 10/18/2006
Clause unconditional allocation of the common heritage of a spouse determined - Contribution of property - Institution contractual heir (art. 2 and 3 C. Stn. And 1464 C. civ.) - Attorney fees
Section 5 C. Stn. can not apply with respect to the clause unequal sharing of the common heritage when, under the marriage covenant, the benefit accrues to a husband without reservation well determined independently the fact that the other spouse survives or not.
Such a clause may nevertheless give rise to the perception of inheritance where the husband benefited receives goods that were made in the common heritage of the other spouse or if he owned her own property when adoption of a regime of universal community. The unequal sharing clause in this case, should not be considered as an agreement entered into marriage but is considered a donation on the basis of Article 1464, second paragraph. Insofar as the advantaged spouse receives more than half of the assets contributed by the other spouse, the clause is a qualified institution of contract. Section 2 C. Stn. therefore applies to the amount of half the value of real property made. Habitual
FISCONET and with access to the full text of the decision (NL)
http://www.fisconet.fgov.be/fr/?frame.dll&root=v:/sites/FisconetFraAdo.2 / & versie = 04 & type = arrsuc! IN1H &
possibly View: Rec.gén.enr.not.N ° 25793, p. 181 and:
Contractual heir: Court makes serious reservations about house of mourning clauses: not every hypothesis idle (Delphine Nore note to Rb. Hasselt 18 October 2006)
"tax and inheritance", 2007, Publisher Larcier
C . COMMENT
AIRES ET Bibliographie
Préalable: l'auteur a trouve qu'en anglais Ns indicate ... au moins présent juqu'à
Les voici:
Eric L.. SPRUYT: Berquin NOTARIES: 2006: The Wonderful World of the Marriage Contract:
Bl.18 -19: http://www.berquinnotarissen.be/pdfs/DossierHuwelijkscontracten.pdf
STILL CHOOSE TO CLAUSE? RATING: January 2007
Bl.14 -15: http://www.indicator.be/upload/VLVMVMAL_sample.pdf
Inheritance: Presentation from October 9 2004: Trainees tax advisers: Christophe Blindeman, Notary in Ghent: Master of the Company Mary Ann MASSCHELEIN Degree in Law, Master of Notary
Bl.9-12: http://www.iec-iab.be/ned/download.aspx?type=3&id=2381&file=3863
Foundation Wealth Planning:
TAX BREAKS AND TREATMENT SELECTION CLAUSE IN CHARGE http://stichtingvermogensplanning.be/pdf/pdf_news36_Microsoft 20Word% 20% - 20fiscale% 2020060220%%% 20behandeling 20verblijvingsbeding 20onder%% 20last.pdf
PERSONAL FINANCE. Surviving spouse chooses, but pays bearings ...:
http://www.varu.be/artikel.aspx?artikelID=1126
D.
L'administration d'attribution clause accepté la communauté moyennant the batch ...
Question No. 914 de M. Luk Van Biesen du 8 septembre 2005 et au ministre Vice-Premier ministre des Finances:
"Depuis longtemps déjà, very many people get married under the regime of universal community by providing a provision known in popular parlance "the last surviving spouse" in legal jargon and "attribution clause community."
This clause assigns the entire common heritage to the surviving spouse and defer it the right of succession upon the death of children surviving parent.
However, the public increasingly sees the negative aspects of this clause, which creates a problem from the perspective of children. Indeed, they can never be sure of one day inherit the surviving parent (eg if it "consumes" the entire property) and a tax problem arises also.
Because of the legal fiction of Article 5 of the Code of inheritance and considering the two estates, this clause in effect costing dearly in death duties. Therefore, in practice, notaries are resorting more and more it seems to an alternative, namely the provision of grant payment.
This system assigns a common heritage in full ownership to a surviving spouse who is required to pay compensation to the heirs of predeceased half of net worth.
I submit to you the following questions about this variant:
1. Your tax office admits she the operation of this clause?
2. What are the tax consequences in terms of inheritance rights of attribution clause as expensive as the death of the spouse predeceased that upon the death of the surviving spouse?
3. Upon the death of the predeceased, how should we proceed to estimate the actual debt are different opinions on the subject, it seems. According to some, the estimate must be made based on market value equal to the capitalized value of the claim the day of death, the capitalization being operated at normal interest rate in force on the day of death for the rent money.
Others believe it is appropriate to use the method I estimate that used in the context of the decision of your Administration concerning the Netherlands will "last surviving spouse (Dec. Adm., March 6, 1997, ECR . Gen. Enr. Not., 1999, No. 24880
, p.40).
Can you tell us what position your administration adopt?
4. Recently, the "attribution clauses optional for value" will also appear in practice. In this case, the surviving spouse has the right freely to choose some or all community property but it is also required to pay the heirs consideration equal to the value that exceeds half of the net community.
a) What is the position of your administration with respect to this clause?
b) Is it treated in the same manner, mutatis mutandis, as the attribution clause for consideration?
response of the Deputy Prime Minister and Minister of Finance February 2, 2006, to Question No. 914 Mr Luk Van Biesen of September 8, 2005 (N):
1. The administration accepts the "attribution clause of charge through community."
.
2. Regarding the issue in general specific clauses in marriage contracts, it is very difficult if not impossible, to adopt in casu a general point of view and to establish guidelines. First and foremost, it is sometimes not easy to achieve properly liquidate the matrimonial regime and achieve devolution (the conjunction and combination of the marriage contract and amended, the possibility of a will and / or positions not always as clearly articulated by the heirs themselves in the declaration of succession, for example). The constantly recurring difficulty is that one does not use uniform terms in the respective marriage contracts, acts of regime change in marital or wills, so it is actually difficult (and, as for administration for the heirs themselves and for their advice) to understand what the intention of the deceased.
The tax consequences of an award of freehold Heritage common to the surviving spouse, dependent for that spouse to pay an amount equal to the net worth of half of this common heritage (clause community through allocation of load) on the death of the predeceased spouse were as follows:
¨ the amount that the husband should pay to the estate is a debt that must be reported as an asset (in the Flemish Region (in assets) furniture) of the estate, estimated according market value (as this debt is payable only upon termination of the usufruct of surviving spouse, then no interest is stipulated, which is an obvious cause of diminution in value). The market value is equal to the 7alors capitalization value at time of death. By cons, if interest is actually stipulated in the contract of marriage, the current value of the claim should be declared.
· Since the present value of the claim is usually less than the net value of half the common heritage, the surviving spouse will receive more than its half, and the section of the Code of inheritance tax will be applied to the balance surplus. It will obviously not matter to apply Article 5 of the Code of inheritance tax if the value of the load is equal to half of the common heritage. Regarding the tax consequences of an attribution clause of community support through the death of the surviving spouse, the situation will be different, possibly along the entire debt was paid, a portion of the debt or that no payment has been made between the first the second death.
• If no settlement of the claim has been made, debt can be paid to the passive the estate of the surviving spouse. The heirs will indeed prove the existence of the debt under section 29 of the Code of inheritance. • Payment
part: the debt will be deducted from the estate of the surviving spouse to the extent of the unpaid portion.
• If the debt was fully paid to the heirs of predeceased, it may no longer be deducted from the liabilities of the second succession. In this case, the surviving heritage will also have suffered a corresponding decrease in value.
3. In case of death of the predeceased, the claim must, as already specified, be estimated market value no interest is specified): The debt is multiplied by the funded ratio to 4% depending on years of probable life of the surviving spouse (taking into account the probable life according to ordinary mortality tables). Therefore, it is not the same valuation method as in the case of a "langstlevende · Wills' Dutch (see article 1167 of the Dutch Civil Code) which covers a legacy forward and tax ratio is used to computing the spouse's usufruct. In this case, it is actually a will and the share of children is a legacy term if "clause awarding the community through marriage", the children receive an effective share in the estate, namely a claim.
4.
a) The administration accepts the attribution clause of community support through
b) "alternative means of attribution clause charge" is not the same as a "attribution clause community through support, tax consequences are therefore different. Perception inheritance tax (and possibly registration fee) will depend on choices that the surviving spouse.
E. BLOGS or websites (including news about the 2007 legislative)
See also possibly the site:
LEGAL REGIME MATRIMONIAL - presumed - in the world ... and more ...
+ Embassies: Belgium and Belgian Foreign abroad, if possible with their Sites
+ Consuls of Belgium in notarial powers to notaries
+ Rooms
+ Civil court system in general and (for some countries) + the right of couples living together unmarried: Civil Union .... ... ... Partnership and Cohabitation equivalence Marriage - or not - for gay couples (+ - 20 countries)
+ Sites Belgian and European Union (relative to DIP at large)
Site Address: legal marital regime in the world
Before legal research (including notaries) see:
ALL THE LINKS IN A NUTSHELL
or
SNELL HYPERTEXT-Verbindingen
Websites and blogs of the author of this blog: http://leondochy.blogspot.com/
There is also briefed on how to register to "Disclaimer"
* LEASE OF RESIDENCE: The laws of 2006 and 2007: with particular access-to-MODELS! : http://www.angelfire.com/co/Dochy/BAIL.htm
* Immunity to home Independent:
http://nonsaisissabilite.blogspot . com /
* Niet-beslagbaarheid woning zelstandige: http://nietbeslagbaarheid.blogspot.com/
* STRIKING "2007" - DOORHALING "2007" http://mainleveehanlichting.blogspot.com/
* Absence and judicial declaration of death: http://absence2007.blogspot.com/
* FRANCE: 2007: Reform - deep - the Law of Succession and Right donations, more: changes in tax law:
Civil Law at 01.01.2007 + tax in August 2007 http://www.angelfire.com/co/Dochy/FRANCE.htm
See also the blog equivalent in Dutch on the same topic as this blog:
http://huwelijkscontract.blogspot.com/
blog author: Leon Dochy, notary Honorary Pecq
counter blog visits:
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