When a loved one dies, you are faced with many things and often have to make arrangements in a short period of time. However, as an heir, you must carefully consider whether you want to accept the inheritance and, if so, how you want to do so. This choice can have major financial consequences. Once you have made a choice, you can no longer change it, with a few exceptions. This choice concerns the entire inheritance.

As an heir, you have three options:

1. Pure acceptance
   You do this if you have investigated and the inheritance is positive. The consequence of this choice is that the creditors of the deceased can also recover their debts from your private assets.
   You can also accept an inheritance purely through (unconscious) behaviour. This is the case if you behave like an heir through your actions, such as by directly distributing items from the estate or making private payments with the deceased's bank card. This concerns bank withdrawals that are not seen as being made within the context of settling the estate.
2. Beneficial acceptance
   If it is unclear whether an inheritance is positive or negative, you can accept an inheritance beneficially. If it turns out that the inheritance is negative, recourse to your private assets is in principle not possible.
3. Reject
   You do this if the inheritance is negative, i.e. if there are more debts than assets, or if you do not wish to inherit from the deceased for other reasons. The consequence of this is that you will never have been an heir. .

You can have your choice recorded in the estate register of the court of the last place of residence of the deceased.

Can pure acceptance of an inheritance be reversed?

Suppose you have accepted an inheritance purely and you discover that there is a debt in the inheritance. Some debts are easy to identify, such as a mortgage debt or a debt to the bank. There are also debts that are difficult or impossible for you to trace as an heir. In that case, you do not want to be liable with your private assets for these debts of the deceased. What can you do in that case?

The law includes a possibility to convert the pure acceptance into a beneficial acceptance. This request must be made to the subdistrict court. It must concern an unexpected debt that you did not know about at the time you unconditionally accepted the inheritance and also should not have known about.

With the words ‘knew and should have known’, the legislator wanted to align with the concept of good faith. Good faith is lacking if you knew about the debt at the time of unconditionally accepting the inheritance. This is also the case if you lacked an accurate representation of the situation regarding the existing debts, but under the given circumstances, should have known better or had doubts or should have had doubts about the absence of a debt and failed to investigate this further. The expertise of the heir also plays a role in this. It is therefore important that you conduct a thorough investigation into the components of the estate in order to estimate the size of the inheritance and any debts that may be present.

The burden of proof lies with you as the heir. You must therefore demonstrate that you have thoroughly investigated the size of the inheritance before you made the decision to accept it unconditionally.

The request must be made within three months of discovering the debt. If the subdistrict court grants the request, you will be given permission to accept the inheritance beneficially after all.

What does case law say about this?

There have been many rulings on this subject over the years. How the judge rules depends on all the circumstances of the case, what indications the heir had to conduct further investigation and how thoroughly the heir conducted the investigation. Below are some examples from case law on the rejection or granting of the request.

Rejection of the request:

• If the deceased has possessions that may incur costs, the heir has a duty to investigate. According to the judge, it is a generally known fact that the ownership of a boat involves costs, such as maintenance costs, insurance costs and mooring fees. An heir should investigate this (ECLI:NL:RBROT:2021:1175).
• A tax debt is not an unexpected debt. The heir may be expected to investigate by consulting the deceased's administration, the accountant involved and/or the tax authorities before making a choice. Certainly if the deceased had a business (ECLI:NL:RBMNE:2017:6714).
• If a notary states that there are no debts, an heir can still be expected to at least look at the deceased's records. Particularly if the deceased kept no or hardly any records, the heir is obliged to investigate any possible debts (ECLI:NL:RBNHO:2017:10840).
• If the estate of the first deceased parent is settled by the surviving parent and debts have arisen from this estate, it is up to the heir of the surviving parent to ask for the will of the first deceased parent or to investigate the settlement of this estate. Even if the first deceased parent passed away years ago (ECLI:NL:RBGEL:2018:3615).
• De kosten van een vereffenaar dan wel een executeur en afwikkeling van een nalatenschap zijn geen onverwachte schulden. Immers, de verkrijging van een nalatenschap gaat gepaard met afwikkelingskosten (ECLI:NL:RBROT:2022:2773).
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Allocation of the request:

• The fact that it was known in the family that the deceased had a debt, namely a loan from 1958, cannot be blamed on the third generation of the deceased (ECLI:NL:RBZWB:2018:1118).
• Als de overledene een huurwoning heeft, hoeft de erfgenaam er niet op bedacht te zijn dat er nog een hypotheekschuld is (ECLI:NL:RBDHA:2022:5704).
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Conclusion

Judges are very reluctant to grant such requests. How a judge rules depends on all the circumstances of the case, what indications the heir had to conduct further investigation and how thoroughly the heir conducted the investigation. It is therefore important to consult with a specialised lawyer to determine whether the facts and circumstances warrant submitting such a request to the subdistrict court.

If you become an heir to an estate, it is wise to seek legal advice about the steps you should take. At SPEE advocaten & mediation, we have many years of experience in inheritance law. Feel free to contact us for expert advice! Contactpage SPEE advocaten & mediation..