Inheriting an Estate in the Netherlands From Australia

Inheriting in the Netherlands from Australia means choosing whether to accept or disclaim, then dealing with the Dutch notary settling the estate. The court declaration can be posted from Australia with a copy of your ID, without a notary. Where a Dutch notary asks for your signed power of attorney, an Australian notary and a DFAT apostille may be needed.

Key takeaways

• A Dutch heir has three choices: accept outright (zuiver aanvaarden), accept under benefit of inventory (beneficiair aanvaarden), or disclaim (verwerpen).
• Accepting under benefit of inventory, or disclaiming, needs a declaration to the district court of the deceased's last place of residence. The Dutch judiciary says it can be sent by post, with a copy of the death certificate and of your ID.
• A disclaimer cannot be undone, and your children may then become heirs in your place.
• Banks and buyers of property usually want a verklaring van erfrecht, a certificate of inheritance that only a notary in the Netherlands can draw up.
• A Dutch national abroad may be able to have a signature legalised at a Dutch embassy or consulate-general. Otherwise an Australian notary witnesses it and DFAT adds the apostille.

What are the three choices?

The Dutch judiciary, Rechtspraak, explains that every heir chooses for themselves between three options, and the choice matters most when the deceased had debts.

• Accepting outright. You become an heir and are liable for all debts, even if they are larger than the assets. A declaration to the court is possible but not required. Behaving like an heir, for example by taking the deceased's belongings or paying creditors from the estate's money, can count as outright acceptance. Since 1 September 2016, the Heirs (Protection against Debt) Act gives some protection against a debt you could not have known about.
• Accepting under benefit of inventory. You become an heir, but in principle you cannot inherit a negative estate. The estate must then be settled under legal rules: creditors are paid first and what remains, if anything, is divided among the heirs. This choice requires a court declaration.
• Disclaiming. You refuse the inheritance. You receive nothing and are not liable for the debts. This choice also requires a court declaration, and the judiciary says it cannot be reversed.

An heir under 18 cannot accept outright; a minor can only accept under benefit of inventory or disclaim. The Dutch notaries' professional body, the KNB, adds that each heir makes their own decision.

Is there a deadline to choose?

The Dutch government says there is no general legal deadline for deciding whether to accept. Creditors may not ask the heirs to pay the debts in the first three months after the death, and heirs who need more time can ask the court for it. Two situations do set a clock, according to the judiciary:

• If another heir has already accepted under benefit of inventory, you must choose within three months of learning of it. If you do not, you are treated as having accepted under benefit of inventory too.
• A minor who has not disclaimed within three months is treated by law as having accepted under benefit of inventory.

Until you decide, take care: the government warns that taking or selling the deceased's belongings, or paying open bills, counts in law as accepting outright. It gives one exception: paying the funeral from the estate does not.

How do you file the court declaration from Australia?

Families often expect a notary here; the judiciary's procedure does not ask for one. The declaration is made on the court's form and sent by post or handed in at the court's front desk.

1. Complete the form Verklaring nalatenschap (meerderjarigen), the inheritance declaration for adults, from the judiciary's website. It is in Dutch. Print it and sign it in black or blue pen.
2. Attach a copy of the death certificate and a copy of a valid identity document, such as your passport.
3. Send everything to the district court for the deceased's most recent place of residence, marked for the attention of the district court judge.
4. Receive the deed of inheritance (akte nalatenschap), which the court sends to you, or to your notary if the notary arranged the declaration.
5. The court records an acceptance under benefit of inventory or a disclaimer in its public estate register (boedelregister).

The court charges a registry fee for each declaration. Heirs who make the same choice for the same estate pay it once between them, so filing together makes sense.

Can one heir file for all of you?

Yes. The judiciary explains that one adult heir can make the declaration on behalf of all the adult heirs who make the same choice, using a written power of attorney (volmacht) from each of them. It says there are no legal requirements for its form: the heir's details, the details of the heir being authorised and of the deceased, the choice made, the date and signature, and a copy of the heir's identity document are enough.

So a brother in Brisbane can sign a simple written authority for his sister in Utrecht to file for both of them, without a notary. If the heirs do not all make the same choice, separate declarations are needed for each choice.

What happens to your children if you disclaim?

This is the part families miss. Where there is no will, the judiciary explains, an heir who disclaims is replaced by their children, who then become heirs themselves. If you do not want the debts to pass to them, the children must disclaim too.

For a minor child, a parent cannot simply sign a disclaimer. The parent must first ask the subdistrict court (kantonrechter) for authorisation, and where the parents have joint authority, both parents sign the request, whatever their nationality and even if they live apart. The judge decides whether disclaiming is in the child's interest. With that authorisation, the parent then files the minor's declaration with the court; the judiciary says to do so within two months of receiving it.

What is a verklaring van erfrecht?

Once the heirs have chosen, someone has to settle the estate, and Dutch banks and other bodies usually want proof of who may act. The KNB explains that a verklaring van erfrecht, a certificate of inheritance, states who the heirs are and who is authorised to settle the estate for them. Only a notary in the Netherlands can make one. A bank uses it before giving access to the deceased's accounts, and one is usually needed to sell a home from the estate.

To prepare it, the Dutch notary checks the Central Wills Register for a will, and without one, works out the heirs under the law, including by making enquiries outside the Netherlands for heirs who live abroad. The notary must also verify the identity of each heir. The KNB notes that a certificate is not always needed; sometimes the death certificate is enough for a bank.

When does an Australian notary come in?

An Australian notary is not part of the court declaration, but may be needed for what the Dutch notary asks you to sign. A power of attorney from each heir abroad lets the Dutch notary act for them, for example in selling a house. For documents like these, the Dutch government's legalisation service gives two routes:

• Dutch nationals may be able to have their signature legalised at a Dutch embassy or consulate-general. The service gives a power of attorney to settle an inheritance as an example. You must sign in person at the appointment, with a valid Dutch passport or ID card; it cannot be done by post. The document must be in Dutch, English, French or German.
• For a notarial act, or where there is no Dutch mission nearby, the service points to a local notary. In Australia, that means an Australian notary public witnesses the signature and DFAT adds an apostille.

The service's advice before any appointment is to ask the receiving authority, whether a bank, a notary or a municipality, whether it will accept a signature legalised at a Dutch mission. An heir who is not a Dutch national cannot use the mission route, so the Australian notary and apostille route applies. Our guide to signing a power of attorney for use overseas explains what the notary checks, and our guide to documents for the Netherlands covers other Dutch paperwork.

Which Australian documents might the Dutch side ask for?

The Dutch government's page on documents from Australia says an Australian document must carry an apostille from DFAT for use in the Netherlands, or one from the Australian Embassy in The Hague. It also says documents in English do not have to be translated, and that a document must be original and complete, with any annexes it refers to. The Netherlands is a member of the Hague Apostille Convention; check the HCCH status table on the day.

Document	Where it comes from	Notary or apostille?
Court declaration (verklaring nalatenschap)	The Dutch court's form, signed by you	No; posted with a copy of your ID
Authority for one heir to file for others	A simple letter from each heir	No legal form requirements, says the judiciary
Australian death certificate	The state Registry of Births, Deaths and Marriages	The court asks for a copy; a Dutch notary may ask for an apostilled original
Australian birth or marriage certificate	The state Registry	DFAT apostille if the notary asks for it
Power of attorney for the Dutch notary	Drafted by the Dutch notary	Dutch mission for a Dutch national, or Australian notary and apostille
Australian grant of probate	The state Supreme Court	Apostille on a sealed copy, if asked for

Ask the Dutch notary how recent each certificate must be before ordering it. Our guide to a death certificate for use overseas explains the options.

What if the deceased lived in Australia?

The judiciary's inheritance page covers a deceased who lived abroad. It says you usually have to accept or disclaim both in the Netherlands and abroad. For a deceased who lived outside the EU, such as in Australia, you make the declaration to the competent authority of the country of their last residence, unless the estate includes Dutch assets; then you can also make a declaration at the District Court of The Hague.

The Dutch government adds that the EU Succession Regulation applies in every EU country except Denmark and Ireland. Without a choice of law in a will, the law of the country where the deceased lived applies; a Dutch national could have chosen Dutch law in a will. Which law applies changes who inherits, so take advice from a Dutch notary early. Our guide to overseas inheritance documents covers the Australian side.

An illustration

This is an illustration, not a real case. A Dutch widower dies in Eindhoven, leaving a flat and some debts. His daughter lives in Perth and is an Australian citizen. Unsure whether the estate is positive, she signs the court form accepting under benefit of inventory and posts it with copies of her passport and the death certificate. Later, the Dutch notary settling the estate sends her a power of attorney for the sale of the flat. Because she is not a Dutch national, she signs it before an Australian notary in Perth, and DFAT adds the apostille before it goes back to the notary.

Common mistakes to avoid

• Paying a notary to witness the court declaration, which the court accepts by post with a copy of your ID.
• Taking belongings or paying bills from the estate before deciding, which can count as outright acceptance.
• Disclaiming without thinking about your children, who may inherit in your place.
• Only one parent signing the request to disclaim for a child, where both have authority.
• Booking the Dutch mission as a non Dutch national, when that route is for Dutch nationals.

In short

Inheriting in the Netherlands from Australia starts with a choice: accept outright, accept under benefit of inventory, or disclaim. The last two need a declaration to the Dutch district court, which you can post from Australia with copies of the death certificate and your ID, no notary required. The Dutch notary then issues the verklaring van erfrecht and may ask for your power of attorney; a Dutch national may be able to sign at a Dutch mission, and anyone else signs before an Australian notary, with a DFAT apostille. See our apostille service and our guide to overseas inheritance documents.

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If a Dutch notary has sent you a document to sign, send us what they asked for, and we will explain each step before you book.