BELGIUM Law and Practice Contributed by: Alain Van Geel and Emilie Van Goidsenhoven, Tiberghien
Usufruct and Bare Ownership Ownership splits (usufruct/bare ownership) are fairly widespread in Belgium and make it possible to trans - fer assets to young children while retaining control. Usufruct is a legal right that allows someone to use and enjoy the benefits (such as income or resources) of a property that belongs to another person, without owning it. The person with the usufruct, called the usufructuary, can live in the property, rent it out or use it in other ways, but they cannot sell or damage it. Bare property, on the other hand, refers to the owner - ship of the property without the right to use or enjoy its benefits. The bare owner holds the title to the property but cannot exploit it until the usufruct period ends. Once the usufruct expires (eg, when the usufructuary dies or the term ends), the bare property owner gains full control of the property. Société Simple The société simple is often used when structuring an estate plan. It allows assets to be transferred (by a gift of the shares) while control of the assets is main - tained by others (usually the parents). The company’s shares may be donated in order to pass on the assets contributed to it. A société simple can be set up in several different situations, given the considerable freedom it offers to create a tailor-made arrangement. It does not require a notarial deed and can be done privately. In addition, the société simple is tax transparent. Private Foundations See 3.1 Types of Trusts, Foundations or Similar Enti- ties . 2.7 Transfer of Assets: Digital Assets In Belgium, the control and disposition of digital assets upon death are governed by a fragmented legal framework combining general civil law principles, con - tract law and data protection rules; there is no single, comprehensive statute specifically addressing digital succession. Under Belgian law, digital assets that have an eco - nomic value – such as cryptocurrency accounts –
the management of the common estate is concur - rent, meaning that either spouse may independently perform acts of management related to the com - mon property. The management and disposition of a spouse’s separate (own) property is carried out by that spouse alone. Belgium will recognise foreign prenuptial and post - nuptial agreements, provided they have been validly established in accordance with the EU Matrimo - nial Property Regimes Regulation (Regulation (EU) 2016/1103). 2.5 Transfer of Property Purchases and transfers of real estate located in Belgium, including buildings (except new buildings, which are subject to VAT), are subject to real estate transfer tax (RETT) due from the purchaser. The rate depends on the location of the real estate: the default rate is 12.5% of the fair market value in the Walloon and Brussels-Capital Regions, while the applicable rate is currently 12% in the Flemish Region. Where the purchase or transfer of land is subject to VAT, no RETT will be charged. The transfer of a property by gift or inheritance is subject to progressive rates, which vary according to the region in which the property is located and the relationship to the beneficiary (between 3% and 27% in direct line, or between 10% and 40% for other per - sons). Reduced rates are available, subject to conditions (see 1.2 Exemptions ). For example, there is a special regime for family homes. 2.6 Transfer of Assets: Vehicle and Planning Mechanisms Belgian law allows for many different planning tech - niques and opportunities, including reduced rates for registered gifts, the possibilities under civil law (usu - fruct, indirect gifts, etc) and the existence of vehicles such as the private foundation or the so-called société simple .
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