The Dutch will in 2026: which building blocks are available to you?
For many people, a will is something you draw up once and then forget about. For entrepreneurs, individuals with significant wealth and families with an international footprint, that rarely turns out to be enough. Tax rules evolve, family circumstances change and businesses grow. What looked like a watertight will ten years ago may now produce unnecessarily high tax bills, or worse, lead to distributions among heirs that no longer match the testator’s intentions.
In this article we set out the main building blocks that a Dutch civil-law notary and a tax adviser have available to construct a will tailored to the situation. We start at the default position under Dutch intestate succession law and then work our way through progressively more specific instruments. This is not a complete legal handbook, but a practical overview that helps you have a focused follow-up conversation with a tax adviser or notary.
Table of contents
1. The statutory default as the starting point
2. The surviving-spouse will and the quasi-statutory distribution
5. The topping-up legacy and the interest clause
8. The living will as a complement
10. How these building blocks work together
1. The statutory default as the starting point
If you die without a will and you leave behind a spouse or registered partner together with one or more children, Dutch intestate succession applies automatically. This is governed by article 4:13 of the Dutch Civil Code. In practice, it means the surviving spouse receives all assets of the estate, and the children receive a monetary claim on the surviving spouse equal in value to their share of the estate. That claim becomes due, in principle, only upon the death of the surviving spouse, or if the surviving spouse becomes bankrupt.
At first glance this looks like a workable arrangement. The surviving spouse can continue life undisturbed, and the children receive their inheritance later. In practice, however, this construction often falls short. The statutory interest on the claim is fixed at the legal interest rate minus six percent, with a floor of zero. That sounds attractive because no interest accrues, but for tax purposes it is actually unfavourable. Because no interest accrues, the value of the claim does not grow between the two deaths, so at the second death the children pay inheritance tax on a larger share of the parental estate.
In addition, the statutory default makes little allowance for blended families, business owners with substantial company holdings, or wealth intended to remain in the family for several generations. For these reasons, in virtually any situation involving significant wealth, deviating from the statutory default by means of a will is worthwhile.
2. The surviving-spouse will and the quasi-statutory distribution
The surviving-spouse will is the building block most people are familiar with. At its core it confirms the statutory default, but with one important addition. The interest on the children’s monetary claim can be set by will at a tax-efficient level, typically six percent compound. This means the children’s claim against the surviving spouse grows in value, so that at the second death the inheritance tax payable on the parental estate is reduced. At the same time the surviving spouse remains protected, because the claim is not due during her or his lifetime.
Many modern surviving-spouse wills go a step further and contain a quasi-statutory distribution. This is a testamentary construction in which the statutory default is in fact excluded, and the surviving spouse is given the power, via a choice clause or a settlement administration, to subsequently divide the estate as if the statutory default applied. The advantage is flexibility. Unlike the statutory three-month deadline, the surviving spouse can take more time to determine which interest rate, which division and which tax outcome best fits the actual circumstances at the time.
In situations where you cannot predict how the family or wealth situation will look at the moment of death, this construction offers the broadest scope for tailoring.
3. The usufruct will
The usufruct will is a fundamentally different building block. Instead of letting the surviving spouse inherit everything, the children immediately receive bare ownership of the estate, while the surviving spouse receives the usufruct. That means the surviving spouse may continue to use what belongs to the estate, including rental income and dividend income, while legal ownership passes directly to the children.
The tax effect works in a particular way. The value of the usufruct is determined by reference to an age-based factor from the Dutch Inheritance Tax Implementation Decree, combined with a deemed annual return of six percent. For a spouse aged around forty, the value of her usufruct is set at approximately 84 percent of the estate’s value. The remaining 16 percent is the value of the bare ownership that passes immediately to the children. As the surviving spouse ages, the usufruct percentage decreases and the bare ownership percentage rises accordingly.
At the moment of the surviving spouse’s death, the usufruct ceases and the children’s bare ownership accretes to full ownership without further taxation. This is where the tax strength of the usufruct will lies. The children pay inheritance tax only on the initial bare ownership and not again on the value of the usufruct at the second death.
In the early years after the first death, this form costs more in tax than the statutory default, because the children have to pay inheritance tax immediately on their share. As time passes and the estate grows, the balance shifts. In our experience, the usufruct will becomes the more tax-efficient option from a horizon of roughly 25 years onwards, provided the wealth continues to grow.
We often combine this form in practice with a differentiated remarriage clause, to which we return below.
4. The two-step disposition
The two-step disposition is a building block for situations in which a specific asset is to land first with one person, and on that person’s death is to pass on to other specified persons. Under Dutch civil law this is governed by article 4:141 of the Civil Code. In the will you designate a first beneficiary, the burdened, who initially acquires the asset, and one or more expectants who acquire the asset only at the moment the first beneficiary dies.
A classic example is a family farm or a family residence that you wish to bequeath initially to one child but which, on that child’s death without descendants, should fall back to your other children. The first beneficiary in principle cannot alienate the asset, and the expectants have an enforceable right. To strengthen this further, a complementary administration is often included, so that the asset is also protected against unwanted external influence.
For tax purposes, the two-step disposition is less favourable than a usufruct will applied to the entire estate, because in principle the inheritance tax is levied twice. First on the first beneficiary at the full value, and then again on the expectants at the full value, because they inherit directly from the original testator rather than from the first beneficiary. For that reason a two-step disposition is typically used for a specific asset and not for the entire estate.
A Dutch Supreme Court decision from 2026 has refined the analysis of the depressing effect of two-step conditions on the imputation against the forced heirship share. In certain situations the value for the forced share is not the same as the tax-based usufruct valuation. For anyone considering a two-step disposition combined with disinheritance of a child, this is a point of attention for the notarial drafting.
5. The topping-up legacy and the interest clause
The topping-up legacy is a tax optimisation technique that ensures the child exemption of EUR 26,230 for 2026 is fully used at the first death. In the statutory default, children only receive a monetary claim on the surviving spouse. That claim is deducted from the surviving spouse’s estate and no inheritance tax is payable on it. But if the value of the claim remains well below the child exemption, part of that exemption is wasted.
With a topping-up legacy, the value of what the child receives can be topped up to exactly the amount that can be received tax-free. With two children, this produces a tax-free shift of approximately EUR 52,460 in 2026 from the surviving spouse to the children, and that amount stays out of the second-death taxation. That sounds modest, but applied across several children and a large estate, the effect is significant.
It is important to recognise that the topping-up legacy fits most naturally in a will using the statutory default or in a choice will. In a pure usufruct will it is less self-evident, because the children already acquire substantial bare ownership. In that case the topping-up legacy can be made optional through a choice legacy. The surviving spouse may then choose between usufruct over the entire estate, or full ownership combined with a topping-up legacy to the children. That flexibility is valuable in practice, because the optimal variant only becomes clear at the moment of death.
The interest clause runs in parallel. By setting a testamentary interest rate on the children’s non-callable claim, typically six percent compound, the claim grows in value and the inheritance tax payable at the second death is reduced.
6. Tailored legacies
A legacy is a testamentary commitment of a specific asset, amount or right to a designated person. Unlike an heir, who shares in all assets and liabilities of the estate, a legatee receives only what is described in the legacy. Several forms exist that are often combined in practice.
The specific-asset legacy
The specific-asset legacy is the bequest of a particular item, for example the shares in an operating company, a house or a specific painting. For the inheritance of shares to an individual, this form is often more tax-efficient than a cash legacy under a duty to purchase, because the real estate transfer tax on the inheritance of shares by an individual is, on the basis of article 3, paragraph 1, sub a of the Dutch Real Estate Transfer Tax Act, in principle zero. By contrast, a forced purchase by a BV triggers the regular real estate transfer tax.
The cash legacy
The cash legacy is a commitment of a fixed monetary amount. The cash legacy under a duty to purchase is a variant where the legatee receives the amount under an obligation to use it to buy a specific asset, for example shares in the family company. Since a Dutch Supreme Court decision of April 2026, this variant has become less attractive in the context of real estate companies, because the subsequent purchase is, under Dutch civil law, a purchase rather than an inheritance and therefore does not fall under the inheritance exemption.
The choice legacy
The choice legacy gives a person, often the surviving spouse or executor, the authority to choose from a predefined group of assets or heirs. This is an excellent flexibility tool, because the optimal choice only becomes clear at the time of death.
The percentage legacy
The percentage legacy is a commitment of a percentage of the net balance of the estate. It functions effectively as an heir designation, but without the legatee being involved in the estate administration. For situations where you want a large number of persons to share in the estate at different percentages, this is a commonly used form.
The maintenance legacy
The maintenance legacy is a commitment of a periodic payment, typically monthly, in favour of a person who is in financial or care-related need of support. It is often used for an elderly parent, a child with a disability or a close relative who is not able to provide for themselves.
The grandchild legacy
The grandchild legacy is a variant where grandparents include a direct legacy in favour of their grandchildren, often combined with a topping-up legacy up to the grandchild exemption. This prevents the wealth from being taxed first in the children’s generation and then again when it passes on to the grandchildren.
7. Protective clauses
In addition to the main building blocks above, a number of clauses are included in virtually every modern will to safeguard the testator’s wishes.
Testamentary administration
The testamentary administration ensures that the heir cannot freely dispose of the inheritance. The administrator manages the assets until a specified age is reached, typically 25 years. For children who are young at the time of death, this prevents them or others from inadvertently disposing of substantial amounts. Administration can also be put in place for life, for example for a child with a mental disability.
Substitution
The substitution clause, plaatsvervulling in Dutch, sets out what happens if a designated heir predeceases the testator or rejects the inheritance. Under article 4:11 of the Dutch Civil Code, the descendants of that heir then take their place. We recommend including this provision explicitly for legacies as well, because the statutory rule does not automatically apply to legatees.
Executor appointment
The executor appointment places the administration of the estate in the hands of a trusted person. For business owners and families with complex wealth, it is important to designate an executor who has the overview and who can take decisions promptly and thoughtfully. In some situations we recommend appointing a business partner or the family’s own adviser.
Remarriage clause
The remarriage clause determines what happens to the surviving spouse’s usufruct if she or he remarries. In the differentiated variant, the usufruct over business assets lapses on remarriage, while the usufruct over the marital home is preserved. This prevents a new partner from sharing in the family wealth, while at the same time guaranteeing the surviving spouse’s housing security.
Long-term care clause
The long-term care clause, referred to in Dutch practice as the WLZ clause, ensures that if the surviving spouse enters a long-term care facility, the children’s monetary claim against the surviving spouse becomes immediately callable. This prevents the parental wealth from being consumed by the personal contribution to long-term care, which in 2026 can rise to approximately EUR 3,062 per month.
8. The living will as a complement
Despite the name, a living will is not a will in the legal sense. It is a notarial power of attorney that governs what happens while you are still alive but no longer able to make decisions yourself. It addresses two areas, financial matters and medical matters.
On the financial side, you can designate a representative to manage your affairs, for example continuing to run your business or making payments on your behalf. On the medical side, you set out your wishes regarding invasive treatments and, if desired, euthanasia. That last point is particularly relevant in situations where dementia develops and you may no longer be able to express your wishes later in life.
We typically advise clients to draw up the living will at the same time as the revised will. For business owners, the living will is at least as important as the will itself, because the continuity of the business in case of incapacity or prolonged illness depends directly on it.
9. The codicil
For a number of items, a notarial deed is not required and a handwritten and dated document, the codicil, will suffice. Under article 4:97 of the Dutch Civil Code, you can use a codicil to allocate specific items of clothing, jewellery and personal effects to named individuals. The codicil is not a substitute for a will, but a useful supplementary instrument for distributing personal items of emotional value, without having to execute a separate notarial deed.
10. How these building blocks work together
A well-drafted will is rarely a choice between one of the above forms, but a combination of them. The usufruct will can be combined with a differentiated remarriage clause, a two-step disposition for specific assets, an administration up to a defined age and an executor appointment. In addition, a living will can be drafted at the same time, to provide for situations in which you are still alive but no longer able to make decisions.
The value of a tailored will lies in the interaction between the building blocks. Which building blocks fit best depends on the family situation, the composition of the wealth, any business interests and the wishes regarding succession. For one client the priority is tax optimisation, for another the protection of a specific asset or a specific person. In virtually every case the same advice applies, look not only at the moment of death but at the horizon of twenty to thirty years thereafter, and build in flexibility for circumstances you cannot currently foresee.
The result is a document that is future-proof for decades, that minimises the tax burden, that anchors the testator’s wishes and that protects the heirs against unwanted influence.
If you would like to explore which combination of building blocks best fits your situation, please feel free to get in touch with our team. In every case we work closely with a specialist civil-law notary, and we ensure that the tax and legal sides are fully aligned.
