The legal protection of children whose inheritance is insufficiently safeguarded after the death of one of their parents is inadequate. As a result they are at risk of suffering loss. Dutch law is deficient in this respect and should be improved by the inclusion of additional instructions for subdistrict courts. This is the opinion of legal expert Hans ter Haar, who received his PhD on Thursday 25 April at the University of Groningen. He conducted research on minors and the protection of their assets.
The problem mainly affects a specific group of minors; it arises when one of a child’s parents dies young. Often the surviving parent embarks on a new relationship without establishing exactly what share of the estate the children from the first relationship are entitled to. Officially this is supposed to be done by means of drawing up an estate inventory, but in practice this is often forgotten. ‘In the emotion of the moment people often don’t feel like doing that’, says Ter Haar. ‘Once the children from the first relationship have come of age it is very difficult or even impossible for them to obtain what they are entitled to’.
Ter Haar outlines the situation of a 45-year-old man who suddenly dies, leaving behind his 42-year-old wife and two children aged nine and eleven. ‘In our system of inheritance law, the wife automatically acquires all the assets and assumes the debts. The children acquire a monetary claim against their mother amounting to their share in the inheritance. This share is only due and payable upon her death, or sooner if she were to be declared bankrupt or granted debt adjustment. At this point the mother is supposed to draw up an estate inventory which shows what the children’s share is. But there are strong indications that in practice this often doesn’t happen’.
After a few years the mother meets a new partner and remarries. If she dies before this partner, her estate will pass to him according to the same principle. ‘But at the same time the claims of the children from the first relationship to their shares in their father’s estate will become due and payable. However, without an estate inventory it is not clear what the children can claim, so that a conflict can easily arise,’ says Ter Haar.
Since 2003 Dutch inheritance law has been a simple system which prioritizes avoiding delays in estate settlement. It is mainly focused on ensuring that after the death of a married person the surviving spouse is in a comfortable position. However, according to Ter Haar not enough attention has been paid to safeguards for minor children. ‘It turns out that in practice they are vulnerable, particularly in low-income families. If an estate has plenty of assets, it’s likely that an inheritance tax return will be filed, and later the children’s claims can probably be based on that’.
Ter Haar: ‘The estate inventory referred to in the surviving partner clause can play the same role, but it is actually the only straw children from low-income families have to grasp. If the deed is not drawn up and a conflict arises later in life between the child and the surviving parent, in practice the child is powerless’.
Ter Haar began his research project partly on the basis of information from notarial practices and the knowledge that the system does not work for minors. ‘It is very difficult to establish how big this problem is,’ says Ter Haar, ‘but I estimate that it plays a role in five to ten percent of estates dealt with by notarial family law practices’. The study aimed to establish whether the information about inadequate safeguards was based on facts and whether what happens in real life is in keeping with the intentions of the legislature. Ter Haar’s conclusion is that the latter is not the case.
InTer Haar’s opinion the subdistrict court should assume a more pro-active role. ‘It is important for the legislature to give the subdistrict court additional instructions to reduce the vulnerability of this group of minors. While it is the subdistrict court’s task to make sure that estate inventories are drawn up and filed, in practice this rarely happens’.
‘Subdistrict courts must be more explicitly urged to ensure that the estate inventories that are prescribed if one parent dies are in fact actually drawn up’, Ter Haar. ‘That estate inventory has to be made. Without these documents, later in life a child will not have a leg to stand on’.
Ter Haar has high hopes that his recommendations will be followed. MP Jan de Wit (Socialist Party) has now acknowledged that the legislature and politicians should investigate what exactly needs to be improved and how. De Wit has agreed to make efforts to bring the matter to the attention of the Dutch Lower House.
Hans ter Haar is a lecturer in Notarial Law at the University of Groningen and has had seven years of experience as a junior civil law notary in a family law practice. Ter Haar received his PhD in Law on 25 April 2013 with a PhD thesis titled ‘Minderjarigen en (de zorg voor hun) vermogen’ [‘Minors and the protection of their assets’].
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