Do you accept the estate if you pay for the funeral?
August 2022 – When someone close to you dies, the legal and fiscal settlement of the estate is not exactly the first thing on your mind. But in a hurried society that often gives the impression of being over-regulated, every legal act you take has meaning and consequences, even in such painful circumstances.
To accept or not to accept the succession
When you are called to succession, you have three options:
you accept the succession;
you refuse it; or
you accept it with the benefit of the inventory.
A succession can be accepted explicitly or tacitly, but it must always be refused explicitly.
You tacitly accept an estate if you perform acts that you can only perform as an heir and from which it is clear that you want to accept the estate: acts of conservation do not imply acceptance, but if you appropriate certain assets of the estate, this constitutes acceptance that you cannot, in principle, reverse.
Acceptance of an estate has far-reaching consequences. You are called to the estate with all its assets and liabilities. This means that you also accept the debts of the estate and you may even end up with a debt.
To avoid this, you can also accept the estate with the benefit of the inventory. This involves first establishing whether the estate will be in profit or in deficit. The estate is realised and if there are still debts, you will not receive anything, but you will not receive any debts either.
Funeral expenses
In order to ensure that all deceased persons have a decent funeral, a special regime applies to funeral expenses. Funeral expenses are debts of the estate and are therefore deducted from the assets of the estate.
Unless the person who organised the funeral incurred excessive expenses. In that case, the person who arranged the funeral will have to bear the costs himself.
If no one accepts the estate or if the estate is accepted with the benefit of inventory, the assets of the estate are allocated in priority to the payment of the funeral.
In order to prevent the funeral director from being left with unpaid bills, some judges will still claim these costs from the family members. If, for example, you have organised the funeral because you believe the deceased deserves a decent funeral, there is a good chance that you will also have to pay the funeral costs because you are the principal. Even if you have not accepted the estate. A recent ruling by the Antwerp Court of Appeal proves this.
Organising the funeral = accepting the estate?
In this case, a son had organised his father's funeral. He had also emptied the room in the nursing home where his father was staying. He then rejected the estate.
The mother still had to pay some of the nursing home's bills, which she did, before summoning her son to pay his part of the outstanding bills. According to the mother, the son had formally refused the inheritance, but he did so belatedly. The son had in fact already made acts of acceptance. He had paid the funeral expenses and taken over the (low-value) belongings in the room.
The Antwerp Court of Appeal confirms that there is no kinship obligation that would oblige an heir to pay the funeral costs. If you, as the successor, reject the estate, you do not pay the funeral costs.
By organising the funeral, the taxman has therefore effectively performed an act that can be regarded as a tacit acceptance of the succession. The court also referred to the fact that the son had emptied the room in the nursing home and kept the belongings in it, in order to conclude that there was indeed an acceptance. The son therefore had to contribute to the payment of the nursing home's bills.
Itemise the invoice
It is not entirely clear to what extent the funeral was a determining factor in the Antwerp court's decision. Was it the fact that the funeral was organised or that the room in the nursing home was emptied or both together that were decisive? It is nevertheless peculiar and exceptional for a court to decide that a person accepts an estate on the basis of having organised the funeral.
In any case, it is advisable to be cautious in such a situation. For example, it is best to have the bill for the funeral drawn up in the name of the estate - and not in your own name - and to mention the names of all the family members - and not just the names of those family members with whom you are on good terms. This leaves the door open to recovering the costs from the other family members, but above all, it shows that you are not making this act as a form of acceptance of the estate.
