BELGIUM Law and Practice Contributed by: Alain Van Geel and Emilie Van Goidsenhoven, Tiberghien
7.2 Planning Considerations With regard to personal data and, in particular, social media accounts and other online services, it is entirely possible to remedy the absence of specific Belgian legislation by adopting appropriate testamentary provisions. Certain platforms (such as Facebook) expressly require such arrangements in their terms and conditions. Accordingly, a will may validly include a specific clause determining the treatment of social media accounts and other online services after death. Simi- larly, in respect of other digital assets with financial value, estate planning may be implemented either inter vivos, by way of a gift, or mortis causa, through a testamentary disposition taking effect upon death. Such planning may expressly take digital assets into account. Under Belgian law, digital assets, like any other assets, are transferable during the lifetime, and a gift relating thereto is valid in law. Likewise, a will may acknowl- edge the existence of digital assets and allocate them to the legatees designated by the testator. The principal difficulties do not lie in the legal trans- missibility of the assets themselves, but rather in the practical modalities of transmission, including their identification and location, as well as effective access (particularly where certain assets are held in a hot wal- let – ie, through an intermediary third party). Within the framework of prudent estate planning, spe- cific precautions should be taken, notably with regard to: • the valuation of such assets and the inherent vola- tility associated with this asset class; and • secure access, including the safeguarding of pass- words and seed phrases, and the risk of loss or destruction of a cold wallet. Several estate planning techniques may therefore be contemplated: • the appointment of a trusted third party entrusted with the credentials for access to crypto-assets,
with instructions to transfer them to the designated heirs; • a traditional movable gift (whether by notarial deed, wallet-to-wallet transfer or manual delivery of a cold wallet, although the legal validity of the latter may be subject to debate); and • a will (whether holographic, authentic or interna- tional), in which the testator either merely records the existence of crypto-assets (an approach carry- ing certain risks) or, preferably, provides a detailed inventory of crypto-assets holdings together with clear instructions regarding access and recovery. Finally, particular caution should be exercised when transferring the contents of one wallet to another. A single-character error in the destination address may result in the irreversible loss of the entirety of the transferred crypto-assets. In Belgium, the most popular method for asset succes- sion planning involves using family foundations and the société simple , along with strategic use of legal structures such as companies, life insurance (under certain circumstances) and holding companies. Each of these methods can provide varying levels of asset protection, but the key focus is on shielding assets from creditors, minimising inheritance taxes and ensuring smooth wealth transfer across generations. These methods need to be analysed and adapted on a case-by-case basis to suit different family situations. 8.2 Legal and Tax Considerations In Belgium, for family business that is an independ- ent activity carried out as either a private individual or as a company, there is the possibility of exemption from gift tax (rate of 0%). Specific rules apply in this respect in the Flemish region, the Walloon region and the Brussels-Capital Region. It is also possible to obtain a reduced rate of inherit- ance tax (3% or 7% in the Flemish region and the Brussels-Capital Region, and 0% in the Walloon Region), provided certain conditions are met. 8. Family Business Succession Planning 8.1 Succession Strategies
26 CHAMBERS.COM
Powered by FlippingBook