Dutch Civil Code

Book 4 Law of Succession

Title 4.5 Last wills of various types

Section 4.5.1 Appointment of heirs

Article 4:115 Appointment of heirs by last will
An appointment of heirs is a testamentary disposition made by last will, pursuant to which the testator leaves his entire estate or a share in it to one or more designated (selected) persons.

Article 4:116 Equal position of appointed heirs and intestate heirs
Heirs appointed by virtue of the last will of the deceased have the same rights and legal duties as intestate heirs.

Section 4.5.2 Bequests

Subsection 4.5.2.1 General provisions

Article 4:117 Definition of a bequest
- 1. A bequest is a testamentary disposition made by last will, pursuant to which the testator grants one or more persons a debt-claim against the heirs or legatees in his estate.
- 2. A bequest has to be performed (satisfied) for account of the joint heirs, unless one or more specific heirs or legatees are designated (selected) to perform it.
- 3. Where the performance under a bequest is divisible, the charged heirs each have to perform a part of it in proportion to their shares in the estate, unless the testator has provided otherwise.

Article 4:118 Absence of a specific heir who is obliged to perform (satisfy) the bequest
- 1. When the last will has charged a specific person, as being an heir of the estate, with the performance of a bequest and this person did not become an heir to the deceased’s estate or his right to inherit has expired, then the obligation to perform the bequest shall be incumbent upon the persons who have obtained his share in the estate, unless the last will provides otherwise or something else results from the nature of the performance. The persons who are charged with the bequest instead of the originally designated heir may, however, confine themselves to pay out to the legatee what they have obtained from the deceased's estate instead of the originally designated heir or the value thereof.
- 2. When the last will has charged a specific person, as being a legatee of the estate, with the performance of a sub-bequest and this person did not become a legatee or his right from the bequest has expired, then the obligation to perform the sub-bequest shall be incumbent upon the persons (heirs) who are charged with the performance of his bequest, unless the last will provides otherwise or something else results from the nature of the performance have obtained his share in the estate, unless the last will provides otherwise or something else results from the nature of the performance. The persons who are charged with the sub-bequest instead of the originally designated legatee may, however, confine themselves to pay out to the sub-legatee what originally was bequeathed to the legatee or the value thereof.

Article 4:119 Notification of the legatee of the existence of the bequest
The persons charged with the performance of a bequest as well as the executor nominated by the testator shall ensure that the legatee is notified of the bequest as soon as possible. When the address of the legatee remains unknown to them, they will report this to the Subdistrict Court, which may order them to make specific investigations or to summon (call for) the legatee in a certain way.

Article 4:120 Performance of the obligations arisen from a bequest
- 1. Obligations of the deceased's estate arisen from a bequest may be performed only from the estate when all other debts of the estate have been fully satisfied.
- 2. To the extent that the deceased's estate is not sufficient to perform the bequests from the shares in the estate of the heirs to whom they are chargeable, they are reduced.
- 3. Unless another way of reduction results from the last will, these obligations will be reduced proportionally, on the understanding that, as far as the performance of a bequest is to be regarded as the compliance with a natural obligation of the testator, this obligation shall only be reduced after all others that qualify for a reduction.
- 4. A reduction is effectuated by means of a declaration to the legatee of the heirs charged with the bequest or, if the deceased's estate has been apportioned in accordance with Article 4:13, of the spouse of the testator. As far as the performance already has been carried out, the legal basis therefore shall remain effective, except for the possibility to claim the already performed bequest (partially) back by virtue of Article 4:216 and to take recourse pursuant to Article 4:220 paragraph 3.
- 5. The heirs who are liable for a bequest with their entire property shall, in spite of the reduction, still have to perform it completely.

Article 4:121 Reduction of sub-bequests and other testamentary obligations
- 1. As far as the value of what is bequeathed to a legatee is insufficient or, due to an abatement or reduction, has become insufficient to perform (satisfy) all obligations imposed on him by the testator, he is entitled to reduce the sub-bequests charged to him and the indebted testamentary obligations which necessarily imply an expenditure in money or assets.
- 2. Unless another way of reduction results from the last will, these obligations will be reduced proportionally, on the understanding that, as far as the performance of a sub-bequest or testamentary obligation is to be regarded as the compliance with a natural obligation of the testator, this obligation shall only be reduced after all others that qualify for such a reduction.

Article 4:122 Legatee whose bequest has been abated or reduced may claim full performance after an additional payment
- 1. A legatee whose bequest is abated or reduced, is nevertheless entitled to claim full performance of it, provided that he puts an amount of money in the estate equal to the value of the part of his bequest that has been abated or reduced.
- 2. If the legatee does not exercise this right, then the opposite party may confine himself to pay out only the value of the abated or reduced bequest.

Article 4:123 Request to change or end the obligations arisen from a bequest
- 1. Upon the request of a legatee or of a person charged with the performance of a bequest, the court may change or end the obligations arisen from a bequest, in full or in part, because new circumstances have come up after the death of the testator, which are of such a nature that the opposite party may not expect, to standards of reasonableness and fairness, that these obligations will remain effective in the same way.
- 2. When giving its decision upon a request to change or end obligations as meant in the previous paragraph, the court has to observe the intentions of the testator as much as possible.
- 3. Article 6:258 paragraph 1, second sentence, 2 and 3 and Article 6:260 paragraph 1 and 2 of the Civil Code apply accordingly.

Article 4:124 Benefits (fruits) of a bequest
The legatee to whom a specific asset of the deceased's estate, a usufruct of such an asset, a usufruct of the entire estate or a share in it has been left behind by virtue of a bequest, has the right to demand the distribution of the benefits (fruits) of what is left to him on account of that bequest as far as these benefits (fruits) have been collected by the heirs after the moment on which his debt-claim has become due and demandable, unless the testator has made another disposition. The right of action to claim these benefits (fruits) shall become prescribed on the expiry of three years after the moment on which they have been collected by the heirs.

Article 4:125 Demandability of a bequest
- 1. A bequest of a sum of money becomes due and demandable six months after the testator's death, unless the testator has made another disposition.
- 2. An heir to whom an asset of the testator's estate has been bequeathed against compensation of its value or of a part thereof, may nevertheless withhold payment of that compensation until the estate is divided (apportioned), unless the testator has made another disposition.
- 3. A person who has been charged under a bequest to pay a sum of money to a legatee, shall not be in default solely because of the expiry of the stipulated performance date.
- 4. Article 4:5 applies accordingly to bequests of an amount of money.

Subsection 4.5.2.2 Gifts and other acts that are regarded as a bequest

Article 4:126 Quasi-bequests
- 1. For the purpose of the provisions regarding abatements and reductions laid down in Book 4 of the Civil Code, a donation or other gift is regarded to be a bequest chargeable to the joint heirs, as far as it has to be performed only after the death of the donor and it has not already been performed during his life. Contrary to Article 4:87 paragraph 2 and Article 4:120 paragraph 3, a donation or other gift shall qualify last for an abatement or reduction, unless provided otherwise when the donation or gift was made. Where the donation or other gift can be revoked until the death of the donor, the second sentence of this paragraph shall remain inapplicable.
- 2. Paragraph 1 applies accordingly to:
a. a contractual clause (stipulation) implying that an asset of one of the parties to an agreement will or may pass over to the other party under a condition precedent or under an effective date (time stipulation) without the payment of a reasonable counter performance, as far as this clause shall only have effect at the death of the person to whom this asset belongs; the fact that the clause works both ways for and on account of both parties, does in itself not mean that the other party is paying a counter performance in the meaning of the previous sentence.
b. the appointment of a beneficiary of a capital sum insurance, as far as the payments that will become collectable at the death of the policyholder, are considered as a gift;
c. the conversion of a natural obligation into an enforceable obligation, as far as the debt arising from this last obligation will only be performed after the death of the debtor and it will not already be performed during his life.
- 3. Articles 4:66 and 4:68 apply accordingly.

Article 4:127 Abatements and reductions of entitlements obtained by third parties pursuant to a third-party clause
Where an abatement or reduction concerns an entitlement obtained as beneficiary of a capital sum insurance or another entitlement (advantage) obtained pursuant to a stipulation made on behalf of a third party (i.e. pursuant to a third-party clause also known as ‘jus quaesitum tertio’), it has as result that the person who obtained the entitlement is obliged to compensate the value of the abated or reduced part to the joint heirs to the extent that this is not unreasonable considering all circumstances. If the testator's estate has been apportioned (divided) in accordance with Article 4:13, the payment meant in the first sentence must be made to the spouse of the testator. An entitlement as meant in the first sentence can only be abated or reduced within three years after the favoured third party has received the performance.

Article 4:128 Other equations of quasi-bequests with bequests
The provisions regarding legatees entitled to a bequest laid down in Articles 4:29 paragraph 3 and 4:30 paragraph 3 shall apply accordingly to persons who have been favoured by an act (quasi-bequest) as meant in Article 4:126. With bequeathed assets as meant in Article 4:30 paragraph 5 are equated assets which have been obtained under an act as meant in Article 4:126. The provisions regarding legatees entitled to a bequest laid down in Articles 4:216 and 4:220 paragraph 3 concerning shall apply accordingly to persons who have been favoured by an act as meant in Article 4:126 paragraph 1 and 2, under point (c), as well as, to the extent that this is not unreasonable in view of all circumstances, by an act as meant in Article 4:126 paragraph 2, under point (b).

Article 4:129 Non-demandability clause
The testator may in his last will subject an act as meant in Article 4:126 to a condition as referred to in Article 4:82.

Section 4.5.3 Testamentary obligations

Article 4:130 Definition of a testamentary obligation
- 1. A testamentary obligation is a testamentary disposition, made by last will, in which the testator imposes an obligation other than a bequest on the joint heirs or on one or more specific heirs or legatees.
- 2. A testamentary obligation can be imposed as well on an executor nominated by the testator. The obligation that has been imposed on such an executor shall be incumbent as well upon the joint heirs, unless something else results from nature of that obligation or from the last will.
- 3. Article 4:120 applies accordingly to a testamentary obligation which necessarily implies the expenditure (supply) of money or one or more assets from the testator's estate; such testamentary obligations are reduced simultaneously with a bequest and to the same extent.

Article 4:131 Possible effects when a testamentary obligation is not performed
- 1. If a testamentary obligation is incumbent upon an heir or legatee, then this heir or legatee obtains his right in the deceased's estate under a condition subsequent that the court shall decide that his right has expired because he did not perform the testamentary obligation chargeable to him under the last will of the testator.
- 2. The court’s decision that the right of the heir or legatee has expired due to a non-performance of the testamentary obligation may be given upon the request of any person with an immediate interest in such a decision.
- 3. An heir who was liable with his entire property for the debt-claims of the testator's creditors and legatees, remains fully liable towards these creditors and legatees after his right in the testator's estate has expired due to a court decision as referred to in the previous paragraphs, without prejudice to his right to take recourse against the persons who have become entitled to what he otherwise would have inherited.

Article 4:132 The person who has to perform a testamentary obligation is absent
If a testamentary obligation has been imposed on a specific person as heir or legatee and this person has not become an heir or legatee or his right in the testator's estate has expired (or has ceased to exist otherwise), then this testamentary obligation will become incumbent upon the persons who have obtained this person's share in the testator's estate instead of him or who were charged with the performance of the bequest that was made to him, unless the last will provides otherwise or something else results from the nature of the performance.

Article 4:133 Interference with a condition added to a testamentary disposition
- 1. If the fulfilment of a condition precedent, added to a testamentary obligation, has been prevented by the person who has to perform this obligation, then this condition is considered to have been fulfilled if reasonableness and fairness require so.
- 2. If the fulfilment of a condition subsequent, added to a testamentary obligation, has been caused by the person who has to perform this obligation, then this condition is considered to have been unfulfilled if reasonableness and fairness require so.
- 3. Article 4:140 paragraph 1 shall apply accordingly.

Article 4:134 Change or ending of a testamentary obligation
- 1. Upon the request of a person charged with the performance of a testamentary obligation or upon the request of the Public Prosecution Service, the court may change or end a testamentary obligation in full or in part:
a. on the ground that new circumstances have come up after the testator's death of such a nature that an unchanged continuation of the testamentary obligation would be unjustified in view of the involved personal interests and the public interest;
b. on the ground that it has become very difficult or even impossible to perform the testamentary obligation due to an abatement or reduction of the obligation itself or of the testamentary disposition to which it is connected;
c. on the ground that the testamentary obligation pursuant to Article 4:132 has become incumbent on someone else than the person on whom it was imposed initially by the last will.
- 2. When the court changes or ends the testamentary obligation on the grounds mentioned in paragraph 1, it shall take the intentions of the testator into consideration as much as possible.
- 3. Article 6:258 paragraph 1, second sentence, 2 and 3 and Article 6:260 paragraph 1 and 2 of the Civil Code apply accordingly.

Section 4.5.4 Foundations

Article 4:135 Testamentary foundations
- 1. When a testator has made a testamentary disposition to a foundation, which he has established by means of a last will that has been drawn up by notarial deed, this foundation will be an heir or legatee in his estate, depending whether this disposition has to be regarded as an appointment of an heir or as the making of a bequest.
- 2. When the testator has declared in his last will to establish a foundation, but his last will is not drawn up by notarial deed, then this testamentary disposition will be regarded as a testamentary obligation for the joint heirs to establish such a foundation.
- 3. Upon the request of the Public Prosecution Service, the District Court may order a person who is charged with a testamentary obligation to establish a foundation to comply with that obligation. The District Court referred to in the previous sentence is the District Court of the last address of the deceased or, when the deceased did not have a last address in the Netherlands, the District Court at The Hague. The court may proclaim that its judgment shall have the same legal force as a deed drawn up in accordance with all legal formalities by the person who is obliged to perform the juridical act that establishes the foundation or that this juridical act shall be performed in this person's name by a representative appointed by the court.

Section 4.5.5 Testamentary dispositions subject to a time period (effective or expiration date) or a condition

Article 4:136 Appointment of an heir for a specific period of time (subject to an expiration and/or effective date)
- 1. Where the last will of the testator stipulates that a person has only been appointed as an heir for a specific period of time (up until an expiration date or as of an effective date), the person who will only be called to the estate as an heir as of a future effective date, will nevertheless be treated immediately as an heir with a share in the testator's estate as specified in the testator's last will, yet he will be charged simultaneously with a bequest to establish a usufruct on that share for the set period on behalf of the heir who is called first to the estate to inherit this share.
- 2. In case of an appointment of an heir subject to an expiration date, without an immediately following appointment of an heir subject to an effective date, the heir who is called first to the estate shall acquire a usufruct on the share in the testator's estate with the right to alienate (convey), spend and consume the involved assets, insofar the testator has not excluded such a right.

Article 4:137 One must exist in order to be able to derive a right from a testamentary disposition made under a condition precedent
Where a testamentary disposition is made under a condition precedent, a person can only derive any right from it if he exists at the moment on which this condition is fulfilled, unless the contrary results from the last will or from the nature of the disposition.

Article 4:138 Appointment of an heir subject to a condition precedent or subsequent
- 1. Where the last will of the testator stipulates that a person has been appointed as an heir subject to a condition precedent or subsequent, the person to whom the assets from the testator's estate belong until this condition is fulfilled, will be regarded as the sole proprietor of the obtained assets insofar it concerns the powers, rights and legal actions to be exercised by and against third persons.
- 2. Other than that, the provisions for a right of usufruct of Title 3.8 of the Civil Code will be applicable as long as it remains uncertain whether the condition will be fulfilled or not. Consequently the person who has obtained the assets from the inheritance must preserve and maintain them as if he was a usufructuary, unless the testator has granted him the right to use up (consume) the involved assets and to alienate (convey) them unconditionally.
- 3. In case of an appointment of an heir under a condition subsequent, without an immediately following appointment of an heir under a condition precedent, the first entitled heir is allowed towards the person to whom the involved assets will belong as soon as the condition is fulfilled, to alienate (convey) these assets and to use them up in the same way as a usufructuary to whom such rights were granted, as far as the testator has not provided otherwise.

Article 4:139 Interference with a condition added to an appointment of an heir
- 1. If the fulfilment of a condition, added to the appointment of an heir, has been prevented by someone to whom one or more assets from an inheritance belong as long as this condition is not fulfilled, then this condition is considered to be fulfilled if required so by reasonableness and fairness.
- 2. If the fulfilment of a condition, added to the appointment of an heir, has been brought about by someone to whom one or more assets from an inheritance will belong as soon as this condition is fulfilled, then this condition is considered to be unfulfilled if required so by reasonableness and fairness.

Article 4:140 Time-limit for conditional appointments of heirs
- 1. Where a condition, added to the appointment of an heir, has not yet been fulfilled thirty years after the death of the testator, the testamentary disposition ceases to exist when it is a condition precedent; if it is a condition subsequent, then this condition ceases to exist after this period of time. Any disposition of the testator contrary to this provision is null and void.
- 2. The previous paragraph applies as well to a bequest of a specific asset of the testator's estate and to a bequest of a limited property right vested in such an asset.

Article 4:141 No time-limit for certain conditional appointments of heirs
The previous Article does not apply to the appointment of an heir under a condition subsequent which immediately is followed by an appointment of an heir under a condition precedent, according to which the assets or the not used up (consumed) part thereof at the time of death of the first entitled heir or at an earlier moment will be obtained by the next entitled heir if this last heir still lives at the moment that was pointed out for this purpose by the testator.

Section 4.5.6 Executors appointed by the testator

Article 4:142 Appointment of an executor
- 1. The testator may appoint in his last will one or more executors. He may give an appointed executor the right to appoint one or more other executors in addition or as his substitutes; he may stipulate as well that, when an appointed executor is not or no longer present, the Subdistrict Court may appoint a substitute at the request of any interested party.
- 2. If there are two or more executors, then each of them is allowed to perform independently all necessary activities, unless the testator has provided otherwise.
- 3. In the event of a dispute between the executors, the Subdistrict Court shall give a decision upon the request of one of them. The Subdistrict Court may determine a split up of the activities or of the remuneration to which the executors are entitled.

Article 4:143 Acceptance of an appointment as executor
- 1. One becomes an executor by accepting such an appointment after the testator has died. Upon the request of any interested party, the Subdistrict Court may set a period after which it is no longer possible to accept the appointment as executor.
- 2. Persons without full legal capacity, persons whose assets are subject to a fiduciary administration as meant in Title 1.19 the Civil Code, persons who are bankrupt and persons falling under the Debt Repayment Scheme for Natural Persons cannot become an executor.

Article 4:144 Duties and remuneration of an executor
- 1. Without prejudice to the testamentary obligations imposed by the testator on the executor, it is the executor's duty to administer the assets of the estate and to pay off the debts of the estate that have to be satisfied from the estate's assets during his administration period, unless the testator has provided otherwise.
2. Unless provided otherwise in the last will, the executor or, when there are two or more executors, the joint executors are entitled to a remuneration (fee) of one percent of the value of the estate, to be calculated on the day that the testator has died.
- 3. Article 4:159 paragraph 2 and 3 shall apply accordingly.

Article 4:145 Position of the heirs towards the executor
- 1. Where a person has accepted his appointment as executor and his duties include the administration of one or more assets of the estate, the heirs may not dispose of these assets nor of their share in it without cooperation of the executor or the authorisation of the Subdistrict Court until the executor’s right to administer these assets has ended.
- 2. During the administration period the executor represents, in the exercise of his duties, the heirs in and out of court.

Article 4:146 Appointment of an estate notary / inventory of the estate
- 1. The executor charged with the administration of the testator's estate may instruct a notary to settle (wind up) the estate; this estate notary shall notify the heirs of the acceptance of such an instruction.
- 2. With convenient speed the executor must draw up an inventory of the testator's estate, that includes a provisional list of the debts of the estate and he must notify the creditors who are known to him to file their claims at the estate notary or, if such a notary is absent, with one of the executors. The filing of a claim interrupts a running prescription.

Article 4:147 Realisation of the assets of the estate
- 1. The executor is entitled to sell off and realize the assets of the estate that are administered by him as far as this is necessary in view of his duty to pay off the debts of the estate and to perform the testamentary obligations imposed on him.
- 2. Unless the testator has provided otherwise, the executor shall consult the heirs as much as possible on the choice of the assets to be sold and on the way to realize them and, if an heir opposes against the intended realisation of assets, gives this heir the opportunity to call in the decision of the Subdistrict Court.
- 3. The testator may provide that the executor needs the approval of the heirs to sell off and realize the assets of the estate. This approval may, however, be replaced by an authorisation of the Subdistrict Court.
- 4. The provisions in the previous paragraphs with respect to the heirs apply as well to them who have acquired a usufruct on the entire estate of the testator or on a share in that estate.

Article 4:148 Duty to inform the heirs
If asked for, the executor must inform an heir about the way he has exercised his duties.

Article 4:149 The end of the capacity of executor
- 1. The duties of an executor end:
a. when the executor has completed his activities as such;
b. on the expiration of a fixed period if the executor was appointed for just that period of time;
c. when the executor dies, when he falls under the Debt Repayment Scheme for Natural Persons, when he gets bankrupt, when he is placed under adult guardianship or when one or more of his own assets are placed under a fiduciary administration as meant in Title 1.19 of the Civil Code;
d. when the testator's estate must be liquidated in accordance with Section 4.6.3 of the Civil Code (‘statutory liquidation of the estate’);
e. in the events mentioned to this end in the last will of the testator;
f. when the Subdistrict Court has awarded a request to discharge the executor from his duties as of a certain day.
- 2. The discharge may be awarded by the Subdistrict Court, either upon the request of the executor himself or, for important reasons, upon the request of a co-executor, an heir or the Public Prosecution Service or because the Subdistrict Court has decided so of its own motion. Pending the investigation the Subdistrict Court may order provisional arrangements and it may suspend the executor.
- 3. A former executor must continue to perform his duties insofar the settlement (winding up) or liquidation of the estate cannot be postponed without causing damage to it, until the person who will be empowered with the administration after him, has accepted his appointment as executor.
- 4. Where a person has lost the capacity of executor because he has become bankrupt or because he has been placed under adult guardianship, the obligations meant in the previous paragraph must be performed by the liquidator or legal representative as far as this person is aware that such a capacity existed; where a person has lost the capacity of executor because he is falling under the Debt Repayment Scheme for Natural Persons or because one or more of his own assets are placed under a fiduciary administration as meant in Title 1.19 of the Civil Code, the same applies to his legal administrator. Where a person has lost the capacity of executor because he has died, his heirs, provided that they are aware that such a capacity existed, must report the executor's death to the heirs of the testator who had appointed the deceased as executor.

Article 4:150 The end of the executor's administration of the estate
- 1. The executor who has been charged with the administration of the testator's estate or of one or more of the assets thereof and who has completed his duties, is entitled to end the administration by placing the assets of the estate at the disposal of the heirs.
- 2. The heirs may end the executor's right of administration of the estate or of one or more of the assets thereof:
a. when it was the duty of the executor to settle certain debts of the estate and to perform certain testamentary obligations or this could have become his duty within one year after the testator's death and these debts and testamentary obligations all have been satisfied completely;
b. when one year and six months have passed since the moment on which one or more executors could have started the administration of the testator's estate. Upon the request of an executor, the Subdistrict Court may extend this period, even after its expiration, several times.
- 3. When the heirs give the executor the necessary resources to accomplish the settlement as meant in paragraph 2 under point (a), they may immediately end his right of administration for the other part.
- 4. Articles 4:225 and 4:226 apply accordingly when the identity of one or more heirs is unknown or when one or more heirs are not prepared to take in the assets of the estate offered to them.

Article 4:151 To render account
The executor whose right of administration of the testator's estate has ended, must render account of his activities to the person who will be entitled to administer the estate or a part thereof after him, in accordance with what the law stipulates to this end for legal administrators.

Article 4:152 The spouse of the testator with a usufruct is a fictitious heir
For the purpose of this Section, the spouse of the testator who has obtained a usufruct by virtue of Title 4.3.2 of the Civil Code, will be regarded as an heir. This spouse also has the rights and powers referred to in Article 4:150 paragraph 2 and 3.

Section 4.5.7 Testamentary administration

Subsection 4.5.7.1 General provisions

Article 4:153 Institution of a fiduciary administration by virtue of a last will
- 1. A testator may, by last will, establish a fiduciary administration over one or more assets which he has left to his heirs or legatees.
- 2. Unless the testator has provided otherwise, this so-called testamentary administration becomes effective on the day on which the testator dies.

Article 4:154 Substitution of assets / benefits (fruits)
Unless the testator has provided otherwise, the testamentary administration will cover also assets that must be regarded to have come in the place of an asset subject to administration, including the benefits (fruits) produced by such assets, as long as these benefits (fruits) have not been distributed to the person entitled thereto pursuant to Article 4:162.

Article 4:155 Legal presumptions regarding the grounds for a testamentary administration
- 1. A testamentary administration over an heir’s share in the deceased’s estate or over a bequest is presumed to be established in the interest of the proprietor (the heir or legatee in question), unless one of the following paragraphs is applicable.
- 2. A testamentary administration over a usufruct is presumed to be established in the interest of both, the usufructuary and the principal proprietor. The same applies to a testamentary administration over a right of common and right of habituation.
- 3. A testamentary administration over a conditional testamentary disposition is presumed to be established in the interest of both the person who will obtain the asset on fulfilment of the condition and the person who will then lose his rights in that asset.
- 4. A testamentary administration over assets or shares in assets that have to be administered jointly, is presumed to be established in the common interest of all involved proprietors and co-proprietors.

Article 4:156 Testamentary administration in the interest of an unknown person
If a testamentary administration has been established exclusively or besides in the interest of another person than the proprietor of the assets subject to administration, then this other person is presumed, as long as his identity is not ascertained, to be someone who is not capable of determining his will as far as it concerns the application of the provisions of this Section.

Subsection 4.5.7.2 The administrator

Article 4:157 Appointment of an administrator
- 1. When the last will does not present a regulation for the appointment of an administrator, the Subdistrict Court will appoint one or more administrators upon the request of a proprietor of an asset subject to administration, an heir, a legatee, an executor or another interested person. The Subdistrict Court must ascertain first whether the to be appointed administrator is prepared to accept his appointment.
- 2. Persons without full legal capacity, persons whose assets are subject to a fiduciary administration as meant in Title 1.19 of the Civil Code, persons who are bankrupt and persons falling under the Debt Repayment Scheme for Natural Persons as well as the persons mentioned in Article 4:59 may not be appointed as administrator in the sense of the present Article.
- 3. Legal persons with full legal capacity may be appointed as administrator in the sense of the present Article.
- 4. If necessary an interim administrator may be appointed.
- 5. A person appointed by the court shall become an administrator on the day following the one on which the court’s clerk has notified him of his appointment, unless the court order indicates a later date.
- 6. A person who is not appointed by the court shall become an administrator on the day following the one on which he has accepted his appointment.

Article 4:158 Two or more appointed administrators
- 1. When two or more administrators have been appointed, then each of them may independently perform all activities concerning the administration, unless the last will or the Subdistrict Court provides otherwise.
- 2. In the event of a dispute between the administrators, the Subdistrict Court shall give a decision upon the request of one of them, unless another arrangement has been made to this point in the last will.
- 3. If so requested, the Subdistrict Court may for important reasons change or split up the activities of the administrators.

Article 4:159 Remuneration for an administrator
- 1. Unless the last will provides otherwise, the administrator or, when there are two or more administrators, the joint administrators are each year entitled to a remuneration (fee) of one percent of the value of the property subject to administration, to be calculated over the value at the end of that year.
- 2. Where there are two or more administrators and the last will does not provide for a regulation for the partitioning of their remuneration, then each of them receives an equal fee, unless the Subdistrict Court has ordered differently or the administrators have mutually agreed otherwise.
- 3. On account of special circumstances the Subdistrict Court may, for a fixed or indefinite period of time, provide for a different remuneration than the one set in the last will of the testator or than the one set by law.

Article 4:160 Inventory list, security and registration
- 1. The administrator must as soon as possible make an inventory list of all the assets subject to administration. If he is appointed by the court, then he must hand in a duplicate of this list, against a receipt, at the Registry of the District Court of the territory where the residence of the proprietor of these assets (the heir or legatee in question) is located. He only has to give security if this has been indicated when the testamentary administration was established.
- 2. Unless indicated differently when the testamentary administration was established, the administrator must register the testamentary administration and his appointment:
a. in the public registers meant in Title 3.1.2 of the Civil Code, if the testamentary administration relates to registered property;
b. in the register of shareholders meant in Articles 2:85 and 2:194 of the Civil Code, if the testamentary administration relates to registered shares in a company limited by shares ('naamloze vennootschap') or a private limited company ('besloten vennootschap');
c. in the commercial register if the testamentary administration relates to a business enterprise or a share in a commercial partnership.

Article 4:161 Rendering account
- 1. The administrator renders account of his activities annually and at the end of his administration to the proprietor of the assets subject to administration and to the persons in whose interest the administration has been established, unless other times have been pointed out in the last will for this purpose. At the end of his administration the administrator also renders account of his activities to the person who will be administer the assets after him. When the administrator has been appointed by the Subdistrict Court, he renders account of his activities before this court.
- 2. If the proprietor of the assets subject to administration or another interested party is not able to examine the account rendered or if the identity of this proprietor or interested party is uncertain, the administrator must render account to the Subdistrict Court, unless the last will provides otherwise. When the Subdistrict Court has approved the account rendered, this does not prevent the proprietor or interested party to ask the administrator again at the end of the administration to render account over the same administration period, as far as this is not unreasonable.
- 3. The Subdistrict Court may – either of its own motion or upon the request of the administrator – relieve the administrator of his obligation to regularly render account of his activities before the court. It may also order that the administrator only has to render account this way once in a specific number of years.
- 4. Other than that, the provisions for the rendering of accounts of a guardianship of Subsections 1.14.6.10 and 1.14.6.11 of the Civil Code apply accordingly.

Article 4:162 Distribution of benefits (fruits)
- 1. Each time when account is rendered, the administrator must distribute to the entitled persons the net proceeds of what the assets under administration have produced in that period of time, deducted with the remuneration that is chargeable to him, as far as no other provisions have been made when the testamentary administration was established. Upon the request of an entitled person the Subdistrict Court may provide other data for the distribution of these benefits (fruits).
- 2. As long as the identity of the person entitled to these benefits (fruits) is uncertain or as long as the person entitled to these benefits (fruits) is not able to receive them, the to be distributed net proceeds meant in paragraph 1 remain under the administration of the administrator, unless the last will or the Subdistrict Court provides otherwise.

Article 4:163 Liability of the administrator
The administrator is liable towards the proprietor of the assets subject to administration if he has failed to exercise his right of administration in a way as might be expected of a good administrator, unless this failure is not imputable to him.

Article 4:164 End of the status of being an administrator
- 1. The capacity of administrator ends:
a. when the testamentary administration has ended;
b. on the expiration of a fixed period if the administrator was appointed for just that period of time;
c. when the administrator dies, when he falls under the Debt Repayment Scheme for Natural Persons, when he gets bankrupt, when he is placed under adult guardianship or when one or more of his own assets are placed under a fiduciary administration as meant in Title 1.19 of the Civil Code;
d. in the events mentioned to this end in the last will of the testator;
e. when the Subdistrict Court has awarded a request to discharge the administrator from his duties as of a certain day
- 2. The discharge may be awarded by the Subdistrict Court, either upon the request of the administrator himself or, for important reasons, upon the request of a co-administrator, the proprietor of the assets subject to administration, a person in whose interest the testamentary administration was established or the Public Prosecution Service or because the Subdistrict Court has decided so of its own motion. Pending the investigation the Subdistrict Court may order provisional arrangements for the administration of the involved property and it may suspend the administrator.

Article 4:165 Duties of a former administrator
- 1. The former administrator hands over the assets subject to his administration to the person who is empowered with that administration after him. He may withhold the assets until he has received what is still indebted to him by virtue of the exercised administration.
- 2. A former administrator must continue to perform all that cannot be postponed without causing damage either to the proprietor of the assets subject to administration or to another interested party, until the person who will be empowered with that administration after him, has accepted his appointment as administrator.
- 3. Where a person has lost the capacity of administrator because he has become bankrupt or because he has been placed under adult guardianship, the obligations meant in the previous paragraph must be performed by the liquidator or legal representative as far as this person is aware that such a capacity existed; where a person has lost the capacity of administrator because he is falling under the Debt Repayment Scheme for Natural Persons or because one or more of his own assets are placed under a fiduciary administration as meant in Title 1.19 of the Civil Code, the same applies to his legal administrator. Where a person has lost the capacity of administrator because he has died, his heirs, provided that they are aware that such a testamentary administration existed, must lodge an application with the Subdistrict Court for the appointment of another administrator.

Subsection 4.5.7.3 The effects of a testamentary administration

Article 4:166 Administration and management rights
The proprietor of the assets subject to administration is, next to the administrator, entitled to perform acts for the purpose of ordinary maintenance of assets of which he has the use as well as acts that cannot be postponed [without causing damage]. Other than that, only the administrator is entitled to administer the assets subject to administration.

Article 4:167 Other remaining rights of the proprietor
- 1. If the testamentary administration is instituted in the interest of the proprietor of the assets subject to administration, then this proprietor may only with cooperation or approval of the administrator perform acts other than those meant in the previous Article which directly relate to an asset subject to administration. The same applies to the power of a usufructuary to perform acts relating to assets encumbered with usufruct if this usufruct itself is subject to the testamentary administration, and these acts go beyond the usage of the encumbered assets.
- 2. If the testamentary administration is instituted in the interest of another person than the proprietor of the assets subject to administration or for the purpose of a common interest, then the proprietor is only empowered to perform the acts referred to in paragraph 1 under the condition that the testamentary administration will be fully preserved.
- 3. If the testamentary administration is instituted in the interest of both, the proprietor of the assets subject to administration and one or more other interested parties, or for the purpose of a common interest, then the proprietor may only with cooperation or approval of the administrator perform acts referred to in paragraph 1 and only under the condition that the testamentary administration will be fully preserved.

Article 4:168 Juridical acts performed by or addressed to the proprietor
- 1. A juridical act that has been performed by or addressed to the proprietor of assets subject to administration, although due to Article 4:166 and 4:167 he was not empowered to perform or to participate in such an act, is nevertheless valid if the opposite party neither was nor needed to be aware of the existence of the testamentary administration. Yet, it is not possible to obtain a court order to enforce the compliance with an obligation arising from such a juridical act as far as it purports to alienate an asset subject to administration or to encumber such an asset with a limited property right.
- 2. The fact that an asset as referred to in Article 3:88 of the Civil Code has been disposed of (conveyed) invalidly according to the statutory provisions on testamentary administrations, does not stand in the way of the validity of any later transfer of this asset, if the third party acted in good faith at the moment on which he acquired that asset. The previous sentence applies accordingly to the establishment, transfer and renunciation of a limited property right in such an asset.

Article 4:169 Power of the administrator to perform acts
- 1. With approval of the proprietor of the asset(s) subject to administration the administrator is entitled:
a. to perform acts meant in Article 4:167 paragraph 1 (acts necessary for administering the assets subject to administration);
b. to lend money or to make the proprietor liable as a surety (guarantor) or as a joint and several debtor;
c. to enter into an agreement to end a dispute; the administrator, however, does not need the have the approval of the proprietor to perform an act as mentioned under point (c) in a situation as referred to in Article 87 of the Code of Civil Procedure (a settlement made at an appearance before the court) or if the value of the object of the dispute does not exceed € 700,00.
- 2. When the testamentary administration is instituted solely or also in the interest of another person than the proprietor of the assets subject to administration of for the purpose of a common interest, then the administrator also needs the approval of that other person to perform acts meant in paragraph 1.
- 3. When no approval is given by a person whose approval is required, the Subdistrict
Court may, upon request, replace it with its authorisation under conditions as it regards suitable.

Article 4:170 Apportionment (division) of community property
- 1. When assets subject to administration or assets encumbered with a limited property right which limited property right in itself is subject to administration belong to a community of property, then the administrator has the right to demand the apportioning (division) of that community of property; with approval of the proprietor of the assets or of the limited property right, respectively, the administrator is also entitled to enter into an agreement to make such an apportionment (division) impossible for a specific period of time.
- 2. With approval of the proprietor the administrator is entitled to co-operate in the apportionment (division).
- 3. Article 4:169 paragraph 2 and 3 applies accordingly.

Article 4:171 Extension or limitation of the rights of the administrator
- 1. The powers and duties of the administrator may be regulated more specific in the last will of the deceased; to this end they may be determined more widely or more limited than what results from the previous statutory provisions of this Section.
- 2. The Subdistrict Court may, upon the request of the administrator, the proprietor or a person in whose interest the testamentary administration has been instituted as well, change the rules for the exercise of administration on the basis of unforeseen circumstances. The Subdistrict Court may award such a request under specific conditions.

Article 4:172 Authority of the administrator to represent the proprietor
- 1. The administrator who exercises (carries out) his responsibilities other than with cooperation or approval of the proprietor of the assets subject to administration, is empowered to represent the proprietor in doing so or to act in his own name for account of the proprietor.
- 2. In case of such a representation the provisions of Title 3.3 of the Civil Code apply accordingly to the rights and duties of the opposite party. Rules concerning the administrator's power to represent the proprietor and facts which are important to be able to determine whether the administrator has such an authority of representation, may not be raised against an opposite party who was not aware nor ought to have been aware of these rules or facts.

Article 4:173 Authority of the administrator to represent the proprietor in court
The administrator represents the proprietor in legal proceedings concerning assets subject to administration. He may for this purpose, before representing the proprietor in court, ask for a mandate of the proprietor and of the persons in whose interest the testamentary administration has been instituted as well, in order to exclude his liability for his actions at law. If such a mandate is not granted, the Subdistrict Court may replace it with its authorisation.

Article 4:174 Liability of the proprietor for juridical acts of the administrator
- 1. Without prejudice to Article 6:172 of the Civil Code, the proprietor of assets subject to administration is liable for all debts and obligations resulting from juridical acts performed by the administrator in that capacity in the name of the proprietor.
- 2. As far as the proprietor points out assets subject to administration that will provide sufficient recourse, his other assets cannot be foreclosed (sold under execution) for the recovery of debts and obligations referred to in paragraph 1.

Article 4:175 Recovery of specific debts from the assets subject to administration
- 1. During the testamentary administration the assets subject to it can only be foreclosed (sold under execution) at the expense of the proprietor for the recovery of:
a. debts of the deceased's estate as far as those debts may be satisfied from the proceeds of these assets according to law;
b. debts which relate to these assets;
c. debts arising from juridical acts performed by the proprietor within the limits of his power as indicated in Article 4:166 and 4:167;
d. debts resulting from juridical acts of the proprietor which, although not performed within his power meant in de previous paragraph, are valid because of Article 4:168 paragraph 1, unless the administrator points out other assets of the proprietor not subject to administration which offer recourse in full or in part;
e. debts resulting from juridical acts performed by the administrator in that capacity in the name of the proprietor for which the proprietor is liable according to Article 4:174.
- 2. For the recovery of debts mentioned in paragraph 1 under point (e) the assets subject to administration may also be foreclosed (sold under execution) after they have passed to another proprietor under the condition that the testamentary administration will be fully preserved.
- 3. Where assets subject to a testamentary administration are foreclosed (sold under execution), they are no longer subject to that administration, unless that testamentary administration was instituted solely or as well in the interest of another person than the proprietor or for the purpose of a common interest.

Article 4:176 Recovery of other debts from the assets subject to supervision
Where the testamentary administration has been instituted solely in the interest of another person than the proprietor of the assets subject to administration or for the purpose of a common interest, the assets subject to administration may also be foreclosed (sold under execution) for the recovery of other debts at the expense of the proprietor, but only under the condition that the testamentary administration will be fully preserved.

Subsection 4.5.7.4 The end of a testamentary supervision

Article 4:177 Ending of a testamentary administration on the expiry of a fixed period or because of a rejection of the inheritance or bequest
- 1. A testamentary administration ends upon the expiry of the period for which it has been instituted.
- 2. A testamentary administration ends when it does no longer serve its original purpose because the inheritance or bequest, under which the assets were or could be acquired, is rejected by the heir or legatee. Such a rejection has no retroactive effect.

Article 4:178 End of a testamentary administration instituted in the interest of the proprietor
- 1. Where a testamentary administration is solely instituted in the interest of the proprietor of the assets subject to administration, it ends upon his death. Where the proprietor is a legal person, it ends upon his dissolution, and furthermore, given that thirty years after the death of the testator have passed, when this legal person has given notice that the administration is terminated.
- 2. The District Court may end such a testamentary administration also upon the request of the administrator on the basis of unforeseen circumstances and, in addition, if it is plausible that the proprietor is able to administer the assets subject to administration himself in a reasonable way. When five years since the death of the testator have passed, the testamentary administration may be ended also on this last ground upon the request of the proprietor. Where the District Court rejects a request to terminate the testamentary administration, it may, when asked for, change its rules, whether or not under specific conditions.

Article 4:179 End of a supervision instituted in the interest of someone else
- 1. As far as a testamentary administration is instituted in the interest of another person than the proprietor of the assets subject to administration, it ends when it does no longer serve this interest and also when the proprietor and the other person in whose interest the testamentary administration is instituted, notify the administrator in writing that they have decided jointly to terminate it. The joint decision to terminate the testamentary administration may also concern just one or more of the assets subject to administration.
- 2. If a testamentary administration is instituted in the interest of someone who has obtained a benefit resulting from a bequest under a condition precedent or under an effective date (time stipulation) or resulting from a testamentary obligation, then it may be ended by a notice of termination when thirty years after the death of the testator have passed.

Article 4:180 End of a testamentary administration instituted in a common interest
- 1. As far as a testamentary administration is instituted for the purpose of a common interest of the proprietor and one or more other persons, it ends when it does no longer serve this purpose.
- 2. Such a testamentary administration may also be ended by a notice of termination when five years after the death of the testator have passed.

Article 4:181 Giving notice of termination
- 1. A notice of termination as meant in the previous Article can only be given in writing by the proprietor of the assets subject to administration with due observance of a term of notice of at least one month.
- 2. The notice of termination must be addressed to the administrator and, if there are any, to all interested parties.