Advocaten / Avocats / Lawyers

Saturday, 18 April 2020

Can I still donate for a Dutch notary?

Now that the border between the Netherlands and Belgium is as good as closed, the question arises whether a Belgian resident can still make a donation of movable property before a Dutch notary.

As you know, the advantage of a donation of movable property by a Belgian resident before a Dutch notary is that in principle no gift tax is due on the donation, not in Belgium neither in the Netherlands. Inheritance tax is due in Belgium if the donor Belgian resident dies within 3 years after the donation (the Flemish Region considers extending this so-called period of risk to 4 years as of 1 January 2020) . In case of illness within these 3 (or 4 years), the donor Belgian resident can still consider registering the donation in Belgium and paying gift tax. In such case, no inheritance tax is due.

We understand that, for the time being, Dutch notaries can still execute deeds of donations, also for Belgian residents. Also under the current circumstances it could be worth considering to make a donation before a Dutch notary if you wish to save Belgian gift tax as a Belgian donor.

Practice has already shown that Belgian residents have difficulties to cross the border. In principle, such a border crossing is only possible for essential commutes. It is not certain whether an appointment with a Dutch notary qualifies as an essential commute. This will probably depend on the concrete situation of the donor.

In order to deal with this, several pragmatic solutions are being developed by the notaries.

  • The donor(s) and the donee(s) can be represented by an employee of the office of the Dutch notary

Please note that, in principle, a notarial power of attorney is required to represent the donor(s). This means that the donor(s) must appear before a Belgian notary in order to have the power of attorney executed, as the commute to the Dutch notary will likely not be considered as an essential commute. In Belgium, it will soon be possible to grant a digital authentic power of attorney via Skype - whereby the donor (s) will be identified - and to sign the digital authentic power of attorney via eID or itsme ID. In principle, this digital procedure could, in our view, also be used to grant an authentic power of attorney to an employee of the Dutch notary.

For the donee(s), a private power of attorney could in practice be sufficient. It is then sufficient - as we understand - to mail a copy of the power of attorney and identity card/passport of the person concerned to the Dutch notary, or to Skype with the notary, so that he can verify the identity of the person concerned.

  • The execution of the donation deed via Skype

The Netherlands is considering to have donations executed directly via Skype, without a (notarial) power of attorney. It is however uncertain whether this flexible procedure will also be applicable to donations by Belgian donor(s) to Belgian donee(s) before a Dutch notary.

We are available to discuss this further, taking into account your specific circumstances.

If you have any questions on this subject, please contact the authors of this article or via covid19@tiberghien.com.

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