Organising an estate based on a will

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Anyone may, through a will, decide how their assets will be distributed upon their death.

A will is a unilateral legal instrument whereby a person, called a testator, expresses their last wishes and thus disposes of all their assets, or a portion thereof, for the period following their death.

When the deceased has no will (is 'intestate'), their assets are distributed according to the rules provided for by law. Consequently, anyone who wishes to change the legal order of their estate in favour of certain people is asked to draft a will.

Some people are protected by law and are entitled to a portion of the estate. These are the deceased's descendants. They are forced heirs and their portion is referred to as a 'reserved share'. The share of which the testator may freely dispose is referred to as the 'disposable part'.

This disposable part varies depending on the number of children:

Number of children

Disposable part

1 child

1/2 of the estate

2 children

1/3 of the estate

3 children or more

1/4 of the estate

 

Forced heirs are always entitled to their reserved share, but they are not required to claim it. Therefore, if the testamentary dispositions do not respect the reserved share set by law, these dispositions shall remain valid if the forced heirs do not claim their reserved share. Where applicable, the testamentary provisions shall be reduced accordingly.

The testator may always amend or revoke their will, following the legal rules.

Who is concerned

Any individual who wishes to partially or completely dispose of their assets upon their death may draft a will.

However, legal restrictions apply. Therefore, they must be capable of validly and freely expressing their wishes. A person who is not of sound mind cannot draft a valid will.

A minor under 16 years old cannot draft a will; thus, such a will shall be null and void. Conversely, a minor between 16 and 18 may dispose of half of their assets by a will.

How to proceed

Different forms of wills

There are 3 kinds of wills, which meet the specific rules set by law:

  • handwritten will;
  • notarised will;
  • sealed will.

The three kinds of wills are equally valid. Certain restrictions aside, it is possible to choose any of the will formats.

The testator may always amend or revoke the testamentary arrangements they have made. To revoke a will, the form of the newly created will is of little importance. However, a notarised will may only be revoked by a will drafted in notarised form.

Recipients of a gift contained in a will are referred to as legatees.

Handwritten will

A handwritten will is entirely written by hand, dated and signed by the testator. It is not subject to any other form.

One of the advantages of a handwritten will is how simple it is to draft.

The biggest problem with a handwritten will is the risk that it will be lost. There is a danger that the will might not be found at the time of death, or that the heirs will be unaware that the deceased had a will.

It is therefore in the best interest of the testator to take precautions so that those close to them (or even any other person) will be able to determine after their death that a handwritten will exists.

To that end, any person is entitled to request that their handwritten will be recorded in the central register of last wills and testaments. Therefore, any individual may have their handwritten will registered. If the handwritten will has been submitted for filing with a notary, they are required to register the will.

The Registration Duties, Estates and VAT Authority (Administration de l'enregistrement, des domaines et de la TVA – AED) is the body in charge of registering wills.

The application for registration can be completed by going in person to the following address: Direction de l’Administration de l’enregistrement, des domaines et de la TVA, service 'registre central des dispositions de dernière volonté', 1-3, avenue Guillaume L-1651 Luxembourg.

The same procedure applies if the previously registered handwritten will is withdrawn. If a handwritten will is amended, the amended handwritten will must be registered anew.

Any person who requests registration is required to pay a fee. The amount of the fee to be paid is:

  • EUR 10 for each application submitted electronically;
  • EUR 20 for each application submitted using the application form in paper format.

The registration application must include certain information. For example:

  • surname and first names of the testator, including, where applicable, the spouse's name;
  • date and place of birth of the testator, their national identification number (13-digit social security number - matricule), their profession and address or domicile;
  • date of the will;
  • name and address of the person or institution to which the will was entrusted, or the place where it is kept.

Note that the will itself is not kept in the central register of last wills and testaments.

Registration shall remain secret during the testator's lifetime. When it is registered in the central register of last wills and testaments, a certificate noting the registration of their will is issued to the requesting party. If a handwritten will is withdrawn, a certificate noting that their will has been withdrawn will also be issued to the requesting party.

After the death of the testator, any person may, upon presenting an extract of the death certificate or a judgment declaring the death, obtain information concerning the existence of a registered handwritten will, including the information concerning the place where the will in question is kept.

Notarised will

A notarised will is received by 2 notaries or by one notary, accompanied by 2 witnesses. The will is dictated by the testator.

A notarised will has certain advantages over a handwritten will.

On the one hand, these advantages stem from the legal advice a testator may receive from the notary in charge of accepting the will.

The participation of the notary in drafting the will ensures that the testator's last wishes will not be affected by a flaw in form or substance that would render the will invalid.

Moreover, the notary is legally required to request that the notarised will be registered in the central register of last wills and testaments maintained by the Registration Duties, Estates and VAT Authority. Therefore, a notary is required to carry out any amendment or withdrawal of a notarised will.

After the death of the testator, anyone may, upon presenting a death certificate extract or judgement declaring the death, obtain information concerning the registration of a notarised will.

Sealed will

A sealed will (or secret will) is a document written by the testator or another person, handwritten or typed, that is presented by the testator closed and sealed, before two witnesses, to a notary who drafts a deed of notarised signing. This deed shall be signed by the testator, the notary and two witnesses.

Just as a sealed will is entrusted for filing with a notary, a notarised will is likewise required to be registered in the central register of last wills and testaments. Therefore, information regarding the registration of a sealed will may be obtained after a testator dies.

A sealed will may be written either by the testator themselves or by another person, without a witness being present. However, the testator must sign the will which they have just drafted or had a thirty party draft.

Choice of applicable law in estate matters

In principle, the estate is governed by the law of the State in which the deceased had their habitual place of residence at the time of their death. However, it is possible to choose another law to govern one's estate, namely the law of the State of which one is a national (at the time one makes this choice or at the time of death).

Example: a Luxembourg resident with Belgian nationality may decide that Belgian law will apply to their estate.

The choice of their national law as the law applicable to their estate must be formulated in a holographic, sealed or authentic will.

Only national law can be chosen as an alternative to the law of the State of the last habitual place of residence, the choice of another law is not valid.

Execution of the will

After the death, the heirs and legatees may contact the notary in charge of completing the formalities for the estate (or their own notary), either to submit the will in their possession or, if they are unaware of the deceased's wishes, for the notary to get information from the central register of wills about whether a will was ever filed with one of their colleagues.

Heirs may also directly contact the central register which is maintained by the Registration Duties, Estates and VAT Authority. Indeed, after the death of a testator, any person may, upon presenting an extract of the death certificate or of a judgement declaring the death, obtain the registration information.

Depending on the form of will chosen, the procedures and terms for implementing it vary:

Handwritten will

After the death of a testator, a handwritten will must be submitted to the president of the district court for the place where the estate was passed – namely the district in which the deceased was last domiciled.

This presentation must be completed by any person who finds a will, and it will probably be the notary or one of the heirs and/or close friends of the deceased who carries out this formality.

The will shall then be opened by the president, who will draft a report on the passing of the estate and the status of the will.

The court president then orders the will to be filed with a notary of the president's choosing. This notary shall then be in charge of implementing the will and liquidating the estate.

Notarised will

A notarised will does not have to be presented to the president of the district court for the passing of the estate with a view to filing with a notary that has been designated by said president.

Notaries having received a notarised will, in principle, contact the heirs and legatees.

People close to the deceased, heirs or legatees may take the initiative of contacting the notary (or notaries) that received the will for it to be implemented, and for the estate to be liquidated in accordance with the testator's wishes.

Sealed will

A sealed will, as with a handwritten will, must be presented to the president of the district court after the testator dies.

It can only be opened in the presence of the notaries and witnesses to the deed of signature.

After the will is opened, the chairman appoints a notary, to whom the will is submitted. This notary will be in charge of implementing the will and liquidating the estate.

Implications of the different matrimonial arrangements for the estate

The choice of matrimonial arrangement has no bearing on estates, in the sense that it does not modify the legal order of successions.

Independently of the matrimonial arrangement adopted by the spouses, the descendants of the deceased will always remain their forced heirs. Conversely, the surviving spouse will never become a forced heir due to a marriage.

The choice of matrimonial arrangement, though, may have an effect on the full estate that is to be split at the time of death. Indeed, after the death of either spouse, the property they hold jointly must be liquidated, as happens in the event of a divorce. It is only after liquidation of the communal property that the full estate that is to be split between the heirs will be known.

However, depending on the matrimonial arrangement adopted by the spouses, this communal property will be made up differently, which thus affects the spouses' estate.

This is particularly true for a so-called full community property marriage contract with a surviving spouse allocation clause, in which all of the communal property reverts to the surviving spouse. Consequently, none of the assets are included in the estate of the spouse who dies first.

In the legal regime (which is that of communal property reduced to acquests), one half net of the joint property reverts to the surviving spouse, while the other half will form part of the full estate of the deceased spouse.

In the separation of property regime, all assets of the deceased spouse enter the full estate to be split, given that in this case there is no communal property.

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Demande d'inscription de disposition de dernière volonté

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