Frequently asked questions

At our office you may deal with various professionals. To be appointed as a notary or an associate notary, a person must have studied notarial law at university, have worked for six years as a candidate notary at a notary's office and have completed the professional training. After that, the notary or associate notary must go through an extensive appointment procedure before being appointed by the King. After the appointment, he is sworn in by the court.

An associate notary is a candidate notary who can and may perform the same work as a notary. The difference from a “regular” notary is that the associate notary is employed by another notary.

Candidate notary is a somewhat confusing term, because people often think the person concerned has not yet finished their studies. That is not the case. A candidate notary has completed the university degree in notarial law.

A notary clerk is a specialised legal professional at a notary's office who independently prepares, manages and completes files in family law, real estate law or business law.

When you have an appointment at our office, you must bring a valid proof of identity. This is preferably a passport or identity card. The notary is required to verify your identity and will check the proof of identity using an ID scanner. Should other documents be needed for the appointment, we will let you know.

For signing a deed of transfer or a deed of division, you can give someone a power of attorney to sign on your behalf. You do this with a so-called private power of attorney. In principle, you must sign a mortgage deed yourself at the notary. If that is truly not possible, you need a notarial power of attorney in which you authorise someone to sign the mortgage deed on your behalf. For this power of attorney, you must therefore visit the notary yourself at an earlier time. A will can never be signed by proxy.

Much of our service falls within the scope of the Anti-Money Laundering and Counter-Terrorist Financing Act (WWFT). Under the WWFT, we are required to carry out a number of checks before we can begin the requested work. This applies to both new and existing relationships.

Clients and the directors of clients (legal entities) who have work carried out by us (such as the drafting of a (conveyancing) deed or the provision of advice) must identify themselves. Identification takes place on the basis of a valid passport, identity card, Dutch driving licence or Dutch residence document.

What does this mean for you?
Your identification is scanned with a so-called WID scanner. This is kept in the file.

If a legal entity is involved in a transaction, we must establish, on the basis of a recent extract from the trade register, whether the legal entity exists and, where possible, who is authorised to act on its behalf. It must also be established who the ‘Ultimate Beneficial Owner’ (UBO) is.

What does this mean for you?
At the start of the work, you will be asked to complete and sign a UBO declaration

You always receive a copy of deeds signed at the notary. This allows you to reread what you have signed. The original deeds are kept permanently. For the first twenty years they remain in the notary's safe. After that, they are transferred to the National Archives (Rijksorganisatie voor Informatiehuishouding).

Our account number is NL51 RABO 0383 1759 09 in the name of Client Account Ellens & Lentze. Would you please state the file number or the name of the property you are purchasing?

When you buy a house, you become the owner of the plot and the land on which the home stands. When you buy a home with leasehold, the home becomes yours but the land remains the property of the original owner. As compensation for the land, you must then pay a ground rent (erfpachtcanon).

Registering the purchase agreement is not mandatory. You can choose to do so. By registering the purchase agreement, the buyer is protected against risks such as bankruptcies and attachments. Incidentally, there are costs associated with registering the purchase agreement. If you initially chose not to register the purchase agreement but doubt whether you should have, this can still be arranged on request.

The purchase agreement contains the agreements made between seller and buyer regarding the sale. Think of the purchase price, the date of transfer and any conditions subsequent.

The deed of transfer is drawn up by the notary and effects the legal transfer of ownership. After signing at the notary on the date of transfer, it is registered with the Land Registry. After registration with the Land Registry, you have officially become the owner of the home.

The notary may only pay out the funds once all documents have been correctly processed by the Land Registry. The average processing time at the Land Registry is two working days.

In addition to the amount you borrow, the deed includes an increase for interest and costs. This serves as security for the bank. In the event of a forced sale, they can then also recover their costs. A so-called increased registration may also be included in the deed. This allows you, for example, to borrow more in the future for a renovation without having to go back to the notary.

You do not pay interest on the increased amount. You only pay interest on the amount actually borrowed. In a forced sale, the bank cannot claim more than the amount you actually borrowed plus the costs incurred.

Pursuant to the Anti-Money Laundering and Counter-Terrorist Financing Act and the secondary legislation arising from it (the ‘WWFT’), we are required to record certain details of our clients. In connection with this legal obligation, we ask you a number of questions about your identity in our questionnaire.

In addition, the Dutch government has imposed on us the obligation to report unusual transactions and to investigate the organisational structure and the source of funds.

We understand that you may not like providing this information. However, this obligation to ask for information was not devised by us but is a consequence of the law. As a result, even if we have known you for years and feel good about the transaction, we are required to verify the source of funds. We ask all of our questions in order to put your file in order and allow the transaction to proceed. Please also bear in mind that we may need to ask you to provide further relevant documentation and specifications.

The ground rent (erfpachtcanon) is the fee that a leaseholder pays to the owner of the land for the use of it. With leasehold, the land remains the property of, for example, a municipality, foundation or private owner, while the leaseholder has the right to use the land and, for example, to have a home or business premises on it.

The ground rent may:

• be paid annually;
• be fixed for a longer period;
• be adjusted in the interim in accordance with the leasehold conditions;
• or, in some cases, be bought out entirely.

The amount of the ground rent and the conditions for any increases are laid down in the leasehold deed and the accompanying general provisions.

When purchasing a home or property on leasehold land, it is important to have a clear understanding of the amount of the ground rent and of future financial obligations.

A will is a notarial deed in which you set out what is to happen to your money, home, assets and debts after your death. You state who your heirs are and who receives what from you when you are no longer here.

In a will you can also provide for future situations. For example, if you have children or if your partner remarries after your death. You can also disinherit heirs. To settle your estate, you appoint an executor in your will.

If there is no will, or if the heirs designated in the will and their children have died, the law determines who your heirs are.

With a will, you stay in control of what happens after your death. You set out your wishes clearly and avoid uncertainty or undesirable situations for your surviving relatives.

A will is advisable, among other things, when you:

• want to decide for yourself who inherits your assets, such as your partner, (step)children, grandchildren, a good friend or a charity;
• want to appoint an executor to handle the practical settlement of your estate;
• want to limit inheritance tax or your partner's own contribution towards care in a care institution;
• want to exclude certain family members or your partner from the estate (disinheritance);
• want to offset earlier gifts to one of your children against the estate;
• want to better protect the financial position of your (new) partner or children.

In addition, a will is particularly advisable in the following situations:

• you are single;
• you live together with your partner without being married;
• you have a business;
• you are divorced;
• you have a blended family;
• you have assets or property abroad.

With a will, you choose clarity, tailor-made arrangements and certainty for yourself and your surviving relatives.

• In a will you can include provisions that give your partner a better (financial) position, for example compared to your children. This way you can ensure that your partner can stay in the house. Or that your child only receives his or her share of the inheritance after your partner's death.
• Equalising a gift: If one of your children has received a gift, for example for the purchase of a home, you can arrange in your will that one child receives more than the other.
• Usufruct: Do you have children from a previous marriage and have you remarried? Then you can safeguard the inheritance for the children by granting your new partner ‘usufruct’. In your will you determine when the usufruct ends.
• Exclusion clause: In this way you can prevent the (future) partner of a child from receiving part of the inheritance.
• Without a will, stepchildren are not heirs. If you want your stepchildren to inherit from you as well, you appoint them as heirs in your will.
• Under the law, your grandchildren do not inherit from you as long as your children are still alive. In a will you can arrange for them to receive something as well.
• Guardian: Who will care for and raise your minor children if both parents have died? A guardianship provision can also be arranged through the court.
• Appointing an administrator: If a child is still too young, or you have an adult child with difficulties, for example an intellectual disability, you can appoint an administrator. He or she manages the inheritance for your heir. In your will you determine how long the administration lasts and under which circumstances it ends.
• Ex-partner has no rights: Do you not want an ex-partner to receive income from your estate on behalf of the children? You can prevent this by excluding parental usufruct in the will. The interest income and other proceeds of your estate then go to your children.
• Disinheriting a child or excluding a child from the estate is arranged in a will. However, under the law a disinherited child still has a right to his or her ‘legitimate portion’. The legitimate portion is a sum of money equal to half the value of the share of the estate that the child would have inherited under the law. The legitimate portion only entitles the child to money, not to goods.
• After your death, the disinherited child has 5 years to claim his or her legitimate portion. If he or she does not do so within 5 years, the right to a share of the inheritance lapses.
• Legacy: Who gets the antique cuckoo clock, the gold necklace or your car? Or a specific sum of money? The person to whom you wish to leave the legacy is called a legatee. You can also include a legacy for, for example, a charity. The heirs and executor are obliged to inform the legatee of the legacy and to hand it over.

A lifetime will applies during your lifetime. In a lifetime will you therefore do not determine who your heirs are or to whom you wish to leave something. With a lifetime will you set out who may make decisions on your behalf at a time when you are still alive but can no longer do so yourself. A will is about what must happen after you have died.

With a codicil you can leave certain movable property (such as jewellery or furniture) to a person without the involvement of the notary. A codicil must be entirely handwritten, dated and signed. You cannot leave money or a house by codicil.

In a cohabitation agreement you set out important arrangements about your life together. This provides clarity, prevents misunderstandings and ensures financial security, both during your relationship and in the future. Among other things, you can make arrangements about:

• whether your household contents are joint or (partly) private, and whether there are private assets or private debts;
• the ownership of the balance on a joint (and/or) account;
• the division of household costs, such as groceries and fixed expenses;
• the financial contribution towards the purchase of a home and how it is settled in the event of a sale or the end of the relationship;
• the consequences for the home and any pension rights in the event of a break-up;
• a survivorship clause, by which you arrange that joint assets pass to the surviving partner upon death.

With a cohabitation agreement you choose clear arrangements and avoid uncertainty afterwards. That way you both know where you stand, now and in the future.

Upon the death of one of the partners, the other partner is not an heir. Private belongings and debts pass to the family of the deceased partner.

For example, if you live together in a house that is owned solely by the other partner, you may end up on the street if that partner dies.

You do not need your partner's consent to terminate a cohabitation agreement. A written notice (registered letter) is sufficient. No involvement of a judge or notary is needed either. You can make your own arrangements about the division of household contents, joint accounts and the home, for example. Please note: if you have bought a house together, you do need to go to the notary to arrange the transfer of the home by means of a deed of partition.

A registered partnership is almost the same as a marriage. You must also first give notice of your intended partnership to the municipality, either digitally or in person. The partners then sign a declaration at the town hall in the presence of witnesses.

The differences from a marriage are the following:

• You do not have to say “I do” to each other;
• You can end the registered partnership through a notary or lawyer. If there are minor children or if you cannot agree, you must go to court, just as with a marriage;
• A registered partnership can be converted into a marriage. The reverse is not possible;
• A registered partnership is not always recognised in other countries, or different rules apply.

Before 2018, if you married without arranging anything with the notary, you were automatically married in community of property. That meant that all assets and debts from before the marriage and everything that arose during it were joint. In the event of divorce, everything had to be divided in half.

If you now marry in the Netherlands and arrange nothing, you are automatically married in limited community of property. Everything that was yours privately before the marriage remains so during the marriage. Everything acquired during the marriage is joint and will have to be divided in the event of a divorce.

If one of the partners has substantial assets or debts, or if one or both are entrepreneurs or otherwise run a financial risk, you can choose to enter into a marital property agreement.

With a marital property agreement or partnership agreement, you stay in control of your financial future. You determine which assets and debts are joint and which remain private. This way you can ensure that assets you build up during your marriage or registered partnership, such as savings or a valuable art collection, remain yours personally.

Such agreements also offer important advantages for entrepreneurs. You can keep your business outside the joint estate, so that business and private interests remain separate. This protects your partner against any risks of your business and provides clarity for the future.

Should your relationship unfortunately end, you avoid having to share the full value of the business. This allows your company to continue and you retain the continuity you need.

Banks and other institutions usually require a certificate of inheritance after someone has died. Only in this way can they be certain who is authorised to deal with the deceased's assets.

A certificate of inheritance is a statement by a notary in which, among other things, the following is established:

• that someone has died;
• whether or not there was a community of property between spouses;
• who the heirs are on the basis of any will and a search of the civil registry records and the law;
• whether heirs have accepted the estate;
  who is/are authorised to act and to manage or dispose of the estate.

If, as an heir, you wish to receive the share of the estate you are entitled to but do not want to be liable for possible debts, you can accept an inheritance with benefit of inventory. You must then have an estate inventory drawn up, a list of all assets and debts. In addition, your acceptance with benefit of inventory must be registered with the Court.

An executor must be appointed by will. Because of the role of the executor, it is important to appoint someone you trust completely. The executor handles all matters after your death. This includes arranging the funeral, but also the actual settlement of the estate, such as paying out legacies and settling any outstanding debts.

Until 1 January 2003, an executor could also be appointed by codicil. Codicils appointing an executor that were drawn up before 2003 remain valid after that date.

The advantage of appointing an executor is that the heirs do not all have to arrange everything together. If there is no executor, the heirs can choose to give one person power of attorney to arrange everything on their behalf. Such a person is not an executor, but an attorney-in-fact.

The executor must consult the heirs when he wishes to sell assets. Depending on the provisions of the will, he can only do this independently when it is necessary to pay the debts. Otherwise he needs the cooperation of the heirs. In addition, the executor must provide the heirs with all the information they request.

It is not uncommon for heirs to disagree about the division of the estate. Sometimes one of the heirs refuses to cooperate in the division. Or an unrecognised child claims a share of the estate. Or there is distrust, for example if heirs think something has disappeared from the estate. You can then consider the following options.

Family auction
A family auction is a simple, inexpensive and often pleasant way to divide the household contents. Each heir then draws lots at the notary's office. Has one person received more valuable items than another during the auction? Then you can offset this.

Mediation by the notary
The notary tries to reach agreement with all the heirs. If that fails and differences of opinion remain, the notary puts the points of dispute on paper. This helps in any legal proceedings. Involve a notary in the distribution. They can prevent family disputes.

Mediation
In mediation, the heirs look for a solution together with a mediator. A condition is that the heirs are still talking to each other. They must be willing to sit down together. The final solution is binding.

All wills are registered in the Central Testament Register (CTR). After a death, the heirs of the deceased can consult this register and see whether a will was made and with which notary. Incidentally, the content of the will cannot be viewed through the register.

If you are an heir, you can choose whether and how you accept the inheritance. Each heir makes his or her own decision on acceptance or rejection. If you accept the inheritance, you are liable for any debts of the deceased. Acceptance may also affect your benefits or allowances.

You can choose from three options:

• Unconditional acceptance: You accept the estate and are liable (together with the other heirs who have accepted unconditionally) for any debts.
• Acceptance with benefit of inventory: You accept the estate, but do not have to pay any debts out of your own pocket.
• Rejection: You receive nothing from the estate and are also not liable for any debts.

If you wish to accept with benefit of inventory or to reject, you make a written declaration at the court. You can also arrange this with a power of attorney through your notary. You then do not have to go to the court yourself. Court fees are payable for acceptance with benefit of inventory or rejection.

UBO stands for Ultimate Beneficial Owner, i.e. the ultimate beneficiary of an organisation. This is always a natural person (a human being) who holds more than 25% of the shares, voting rights or ownership interest, or who exercises actual control. Organisations are required to register their UBOs with the Chamber of Commerce. This obligation exists to combat money laundering and fraud.

Business forms can be divided into two main groups: those with legal personality and those without legal personality. An important difference is the extent to which you are personally liable for business debts.

Business forms with legal personality, also known as legal entities, include:

• Private limited company (BV)
• Public limited company (NV)
• Cooperative
• Association
• Foundation

Business forms without legal personality include:

• Sole proprietorship
• Partnership (maatschap)
• Limited partnership (CV)
• General partnership (vof)

A private limited company is a legal entity with a capital divided into shares. The shareholders provide capital to the BV and receive shares in return. These shares represent, on the one hand, the economic interest in the BV and, on the other, control over the BV.

A BV can only be incorporated by notarial deed. The deed of incorporation contains, among other things, the articles of association of the company. The starting capital of a BV can be one euro cent. If a higher starting capital is used, the shares represent a higher value.

After incorporation, the BV must be registered in the trade register https://www.kooijmanautar.nl/kennisbank/begrip/handelsregister/ of the Chamber of Commerce and the UBO register.

Shareholders are not liable beyond the amount for which they have provided capital to the BV.

Directors and supervisory directors of a BV are in principle not liable. This is different in the event of improper management or improper supervision. If the BV has suffered damage as a result, it can hold the director or supervisory director liable.

A shareholders' agreement is indispensable when you have a company with several people. Within your company you want everyone to be pulling in the same direction. In the beginning this will certainly be the case, but over time partners and collaborators may develop a different vision. To prevent disagreement, it is wise to draw up a shareholders' agreement before you start the business.

Decision-making and the admission of new shareholders are among the most important parts of a shareholders' agreement. But matters such as special offer obligations, the arrangements regarding unequal payments on shares and a valuation arrangement in the event of a sale to other shareholders are also part of this agreement. Other matters include:

• Specific profit reserves;
• Arrangements regarding special appointment rights and/or nomination rights of shareholders;
• Qualified majority for special resolutions;
• Non-compete clause;
• Management agreements.

Looking for solutions together is a better basis for the future than each person trying to get the most out of it with their own adviser. Especially if there are children, you remain connected to each other for the rest of your lives through those children. And then it is pleasant if their parents can still get along reasonably well…

Whether you live together or are married, the problems and emotions are the same when you separate. There is often disappointment and incomprehension, especially if one of the partners has a new love interest. And in that situation a number of important agreements have to be made.

For example, you have to agree with each other on who will stay in the house, how the care of the children will be divided, how the costs of the house and of looking after the children will be divided, the division of the car and belongings, payment of the children's costs and much more.

Although it is quite possible to arrange everything by mutual consultation, in many cases it is important to obtain further advice on the legal consequences. In many cases, notarial or private deeds will have to be drawn up to actually settle matters.

Many people cannot or do not want to make all of the above decisions alone and call in the help of an expert.

You can of course each hire your own lawyer, but if you are still ‘on speaking terms’ it is advisable to go to a mediator together.

Because the notary has to be involved anyway for the division of the house and/or the division of the shares in the BV, a notary-mediator (Mfn or VMN) specialised in divorces is often chosen. This notary-mediator is absolutely impartial and is not only specialised in divorce law, maintenance and pensions, but has also learned to deal with the often intense emotions involved in a divorce. The notary-mediator can also draw up a parenting plan and, in that case, give attention to the problems that may arise for the children.

An advantage is that any amendment of the wills can be arranged immediately if desired.

In the first meeting with the mediator, attention is paid to your personal situation and the background of the separation. An inventory is also made of the matters on which agreements need to be made. And if there are things that urgently need to be arranged (for example housing, contribution to costs), work on those can begin straight away.

Once agreements have been made on all topics (housing, spousal maintenance, division of assets, care and child maintenance, and pension), they are set out in a settlement agreement. The notary-mediator will draw up a notarial deed of this. The advantage is that the deed is binding evidence. In addition, with a notarial deed the financial agreements can be enforced directly by a bailiff, without the involvement of a judge or lawyer, in case these agreements are not complied with.