BELGIUM Law and Practice Contributed by: Alain Van Geel and Emilie Van Goidsenhoven, Tiberghien
5. Wealth Disputes 5.1 Trends Driving Disputes
6.3 Fiduciary Regulation This is not applicable in Belgium. 6.4 Fiduciary Investment This is not applicable in Belgium.
Disputes regarding estates are mostly driven by non- compliance with the forced heirship rules by (one of) the children or the surviving spouse. Mediation is possible and is being used more and more, with the help of a professional mediator, a notary or a lawyer. If mediation does not succeed, disputes take the form of court proceedings. The courts will initially appoint a notary to rule on the dispute. 5.2 Mechanism for Compensation In Belgium, there are legal protection mechanisms for specific family members heirs; forced heirs are able to claim their reserved portion of the deceased’s estate (see 2.3 Forced Heirship Laws ). The reserved por - tion is the minimum share of the inheritance that an heir is obliged to receive regardless of the deceased’s will. The free available portion corresponds to the remaining part of the inheritance – ie, the share that the deceased can leave to whomever they wish by bequest. If the testator has not respected the forced heir - ship rules, a forced heir can (but has no obligation to) claim their reserved portion of the estate. What the deceased bequeathed will then be “reduced” to the amount of the reserved portion. This protection mechanism is known as “reduction”. There is a second mechanism for ensuring equality between heirs: the so-called “rapport”, which is a mechanism that allows gifts made during the lifetime of the deceased to be taken into account in the estate, in order to re-establish equality between the heirs (in descending line only). 6. Roles and Responsibilities of Fiduciaries 6.1 Prevalence of Corporate Fiduciaries The use of corporate fiduciaries is not prevalent in Belgium. 6.2 Fiduciary Liabilities This is not applicable in Belgium.
7. Citizenship and Residency 7.1 Requirements for Domicile, Residency and Citizenship “Residency” has a factual meaning under Belgian law. It is characterised by a certain permanence or continuity, independent from the (Belgian concept of) “domicile” or nationality of a person. It concerns the place where a person lives and works; it is the place where their family is housed, the place where a person stays effectively and permanently or maintains their relationships, etc. There is a first rebuttable presumption that a person registered in the Belgian national register is deemed a Belgian resident for personal income tax purposes. The second presumption is irrefutable and qualifies a person as resident if their family is living in Belgium. There are no legal presumptions for inheritance and gift tax purposes. The “seat of fortune” is a relevant connecting factor for personal income, inheritance and gift tax purpos - es. For personal income tax purposes, this connecting factor only applies in the absence of a Belgian resi - dence. The seat of fortune is an alternative connecting factor for inheritance and gift tax purposes. The seat of fortune is located in Belgium if a private individual manages or controls their assets from Belgium, even if the assets are not located in Belgium. The localisation of their assets in Belgium is a rebuttable presumption for this test. Patrimonial interests as well as general economic interests are relevant for this test. The notion of “citizenship” has no tax consequences in Belgium (unless under the last criteria of the tie- breaker rules of double tax treaties in relation to resi - dency).
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