Making a will: what tax advice can save your heirs

Quick answer. The inheritance tax your heirs pay depends on the type of will, your assets, matrimonial property regime, pension and any business. With assets of €1 million and two children, the choice between two common types of will makes a difference of more than €38,000 in 2026. A tax adviser calculates that difference before the will is signed at the notary.

Why is a will also a tax decision?

For inheritance tax, each heir is assessed separately. Every heir has their own exemption, and the rate increases with the size of the inheritance.^[1] The allocation between your partner and children in your will therefore determines the total inheritance tax payable. The civil-law notary checks whether the will is legally sound. We calculate what each heir pays on the first and second deaths under each option.

What types of will are available?

• Without a will, the Dutch statutory distribution applies to married couples with children. The surviving spouse receives all assets and liabilities. The children receive monetary claims, which generally become payable only when the surviving spouse dies.^[2]
• Under a surviving-spouse will, the partner is the sole heir and the children receive assets only on the second death. If a child nevertheless claims their statutory entitlement, the will can stipulate that the claim need only be paid after the surviving spouse's death.^[3]
• Under a two-stage will (tweetrapstestament), the surviving spouse inherits subject to the condition that whatever remains on their death passes to the children of the first partner to die. The surviving spouse may use and spend the assets.^[4]
• Under a usufruct will, the children inherit the estate and the surviving spouse receives a usufruct. The surviving spouse uses the assets and may be granted the power to consume them.^[5] The surviving spouse is also often given an optional legacy, allowing them to acquire assets from the estate.

A will also often includes individual provisions, such as an exclusion clause for children-in-law and the appointment of an executor to administer the estate.^[6] An executor can only be appointed by will.

How large is the difference in a worked example?

A married couple has community of property, assets of €1,000,000 and two children. We compare two wills using the 2026 rates, assuming the assets remain unchanged until the second death.

If the surviving spouse inherits everything, the children do not use their exemption of €26,230 each on the first death. On the second death, the entire estate is taxed at once, largely at 20%. Under the statutory distribution, the children receive their claims on the first death, and those claims are deducted as debts of the estate on the second death. The difference between the two wills is €38,579. If each child's inheritance remains below the first bracket of €158,669, the difference is smaller and consists only of the additional child exemptions used.

What other choices in a will have tax consequences?

• The partner exemption in 2026 is €828,035. If the partner receives a survivor's pension as a result of the death, half its present value is deducted from the exemption. The minimum exemption is €213,915.^[7]
• Dutch business succession relief applies only to the heir who continues the business.^[8] The will must therefore allocate the shares to that heir.
• Whether an inheritance forms part of your child's matrimonial assets depends on your child's matrimonial property regime and any exclusion clause in your will.^[9]
• If you have a foreign nationality or assets abroad, the EU Succession Regulation determines which inheritance law applies. In your will, you can choose the law of your nationality.^[10] Inheritance tax has its own rules. For example, a Dutch national continues to be treated as a Dutch resident for up to ten years after emigration.^[11]

An example from our practice

A couple married in community of property with two adult children asked us to prepare a plan for the coming years. The husband's will dated from the 1980s and named his wife as sole heir. The wife had another European nationality and no will. Both wanted the children to share in the estate immediately on the first death and wanted to prevent children-in-law from receiving any inheritance.

The husband's will predated the inheritance law introduced in 2003. If he died first, the children would not inherit, with the consequences shown in the worked example. The wife was subject to the statutory distribution, without an exclusion clause or choice of law. We calculated both situations and prepared an outline for new wills in which the children share in the estate and an exclusion clause is included. The outline aligns with a gifting plan for 2026, allowing the notary to record the wills and gifts together.

Points to consider

• Under the statutory distribution, children pay inheritance tax on claims they cannot yet collect. Specify in the will how they will pay that tax.
• A gift made within 180 days before death is treated as an inheritance for inheritance tax purposes.^[12] Coordinate a gifting plan with the will.
• Have your will reviewed after marriage, divorce, the birth of a child or emigration, and when you sell a business.

How does Port Sight Tax approach this?

We prepare an overview of your assets, matrimonial property regime, pension and business. We then calculate the different will options using the current year's figures. We record the outcome in a memorandum for you and your notary. Contact Anouk Lobé if you wish to have your existing will reviewed or are making a new will.

Reference date: rates and exemptions for 2026. Under the Tax Plan 2027, which is still being considered, the rates remain unchanged in 2027.

Legal references

1. Art. 24 en art. 32 lid 1 SW 1956.
2. Art. 4:13 BW.
3. Art. 4:82 BW.
4. Art. 4:141 BW.
5. Art. 3:215 BW.
6. Art. 4:142 lid 1 BW.
7. Art. 32 lid 1 onderdeel 4 SW 1956.
8. Art. 35b e.v. SW 1956.
9. Art. 1:94 lid 2 onderdeel a BW.
10. Art. 21 en 22 Verordening (EU) nr. 650/2012.
11. Art. 3 lid 1 SW 1956.
12. Art. 12 lid 1 SW 1956.

Related article: Prenuptial agreements and inheritance tax.