Is it complete? Does the planning still meet my wishes and our (changed) situation? Or does it need to be adjusted? Or sometimes people just want the confirmation that the planning is still provided for most situations. That this feeling prevails amongst many people is confirmed in an article that appeared in De Tijd of 19 March. Thus notaries (among others) get many questions about wealth planning. The reason given is that people now have time for this because of the coronary measures, or because they realise that they have been neglecting this for too long.
But the lockdown also has consequences for the practical side of your planning. Notaries, for example, often play a crucial role in the design or completion of estate and inheritance planning, such as the execution of gift certificates or wills.
In a press release dated 18 March 2020, the Royal Federation of the Belgian Notary's Office announced that, in principle, all deeds whose signature is foreseen until 5 April 2020 will be postponed to a date to be determined. Only urgent deeds, as well as deeds that have to be executed within a tax period - or of which the financial interests of the persons concerned are very important - will be executed between now and 5 April.
With regard to tax deadlines, VLABEL has also taken a number of measures. For example, with regard to the tax obligations for inheritance tax and registration tax, an additional period of two months after the end of the corona measures is provided for. For more information and some examples, please refer to the VLABEL website.
The extension of the tax periods is unfortunately in some situations not a solution for the deeds themselves, which would still have to become past due. As already mentioned, these can still continue if this is urgent or if major financial interests are at stake. This "urgency" should be assessed by the notary according to the actual circumstances. Thus, a deed of donation, a will, a power of attorney or an amendment to a marriage contract may soon be certified in due legal form in the light of imminent death or incapacity.
However, if the intended step in the planning is less urgent, the deed may have to be postponed.
For a large number of acts, there are fortunately also alternatives, which can be carried out privately and which may be authenticated at a later stage.
For example, the self-confessed will is a worthy alternative to the notarial will, with almost identical effects for tax and civil law purposes. The freedom of form of the self-written will, provided that it is dated and signed by the testator, enables all of us to draw up a will ourselves - in our living room. Admittedly, it is advisable - if possible - to deposit this with a notary or later to confirm it in an authentic will.
The same applies to the drawing up and signing of a power of attorney. After all, a power of attorney for care can also be drawn up privately between the principal and the trustee(s). Please note that the private power of attorney is only valid if it is subsequently also registered in the Central Register of Care Agreements, which is done simply by means of a petition addressed to the registry of the justice of the peace court. Moreover, this private power of attorney cannot be used for acts which, under any circumstances, require the intervention of a civil-law notary. The purchase of real estate in the name of and for the account of the principal is therefore impossible with the private power of attorney.
Even if one were to consider making a donation, this can in some cases be done by private treaty. For example, a donation of money or an investment portfolio can be made by means of a bank donation. However, it is important to realise that certain modalities of a donation, such as the reservation of usufruct, cannot be imposed without an authentic instrument. Moreover, the donation will still have to be registered if one wishes to avoid inheritance tax within a period of (currently) three years.
The intervention of the (Belgian) notary in the estate and inheritance planning practice may be crucial in many cases, but it is only one of so many facets for which a solution or alternative must be sought today. Just think of the donation planned for a Dutch civil-law notary, or an ongoing legal settlement in which, in addition to the civil-law notary, the court is also involved. Can this simply continue? And what about the general meetings of the companies or foundations, which will soon come together to decide on the approval of the annual accounts, which will be held at the end of the year?
Some answers to these questions are relatively simple, others are nuanced. For example, if the articles of association so permit, one can vote by proxy at the general meeting of the partnership in such a way that any physical contact with the other partners can be avoided. The donation for a Dutch civil-law notary seems rather difficult to us; is this a necessary relocation? Perhaps not - although this can be argued about.
Last update: 30/04/2020