Registration of certificate of inheritance

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1. To what extent could the Certificate be registered in your Land Registry? Is this Certificate enough for the registration of ownership (or other rights in rem) in the name of the heirs (or legatees)? Otherwise, which other additional documents or complementary requirements would be needed?

Transcriptions in the land register can only be made based on authentic acts and for causes of transition regulated in article 1 of the Mortgage Act7.

These are acts inter vivos regarding transfer or constitution of immovable rights, constitution or change of rights of usufruct etc., . Acts mortis causa, such as wills, need not and cannot be registered.

Obviously, notarial acts on distribution of a succession, including immovable property, must be registered.

Belgian law deals with the transmission of assets in the estate by adopting the system of direct factual possession (saisine). From the moment of death the heirs have the right to take possession of all assets, rights and actions of the deceased (article 724 BCC).

Transmission of the inheritance operates directly and is not administered by a separate body (such as executors or administrators) as in common law countries. Under saisine an heir may take possession of the assets in the deceased’s estate, administer them, derive any benefits from them and represent the estate in any litigation. He may exercise these rights even when he has not yet accepted the inheritance. However, he should be careful, because several actions may lead to the conclusion that he tacitly accepted. Ownership of hereditary assets only follows from accepting the succession (with retroactivity until the moment of death).

The European Certificate of Succession contains valuable information concerning the property rights of the deceased. It will be recommended to the Land Registrars to file the Certificate in their documentation so that they can provide information concerning the succession. This filing will be kept separate from the registration in the land register so that the legal effects of the entry in the land register do not apply to this filed documentation.

The Belgian administration of Patrimonial Documentation is in the middle of a reorganization process and, amongst other changes; the streams of information towards and from the Land Registry are being redesigned. This could mean that the Certificate is to be directed to the administration of Patrimonial Documentation and then dispatched to the different branches and the Land Registry.  When the (final) forms will be available, the situation will be re-assessed.

2. In particular: for the purposes of registration, if the interested parties have complied with a Certificate of Inheritance adequately, will sharing out or distribution of estate deeds be also necessary?

If, for example, a brother and a sister inherit the house where their parents used to live (the quod plerumque fit), do they have to ask a notary to draw up an act of division or distribution? If that is the question, it is submitted that in most cases they will not have to ask a notary to draw up an act of division or distribution: they will sell the house and in the act of sale the notary can and will confirm that the sellers are indeed the owners of the house (and in doing so the cost is reduced: only one notarial act instead of two).

If, for some reason or other, the sister and the brother need to or want to divide the co-ownership, they will have to appear before a notary who will draw up an act of division.

3. In the event that the Certificate cannot be used for purposes of registration at all in your LR system, please let’s know the legal reasons.

4. May the Certificate be rejected by your registration authorities in the event of inadequate completion, mistakes or inaccuracies?

It should be possible to enter the certificate into the documentation as such. Since it adds no legal power nor destroys it, it’s unlikely that there will be additional requirements. Furthermore it will be kept separated from the documentation to which legal effects are attached. As explained under I.1, transmission of property due to inheritance is not administered by a separate body and occurs automatically at the moment of death.

5. For the certificate to be effective for the distribution of the estate and its registration, should this document be issued by national notaries or other practitioners or could it be issued by foreign notaries?

In principle, foreign authentic acts are deposited with a Belgian notary, who makes an act of depot, which is then registered. However, based on the recognition rules of foreign notary acts, it seems that mortgage registrars could also accept transcription of such foreign notary acts.

ELRA and ELRN should take care in this minefield, the aim of the Regulation is to avoid duplication of documents. The Certificate is, in a way, the first real European authentic instrument. We don’t believe that repeating the certificate in a domestic authentic act will be acceptable for the European authorities. Moreover, this is not so much an issue for the land registrar: the notaries are more and more directly concerned.

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