One of your heirs dies before you, what now?

Substitution in inheritance law

As certain as death is, so uncertain is life. Not only for you, but also for your (intended) heirs. It's possible that one of them will die before you. What then? Will this heir's children succeed him, or will the other heirs inherit his inheritance? Should you make a will or perhaps amend your existing will? The answers to these questions depend on whether you already have a will and what you've arranged in it in case your heir dies before you.

If you die without a will, the law determines who your heirs are. If one of your (legal) heirs predeceased you, substitution can occur. This means that the descendants (often the children) of this heir will jointly take their place. If you die with a will, substitution will only occur if you have provided for it in your will.

You have no will and one of your heirs dies before you

If you haven't made a will, the law determines who your heirs are and what portion of the inheritance each of them receives. The law defines four groups that can inherit from you one after the other. You can read about these groups below. It's important that the first group inherits first, followed by the second group, and so on.

First heirs: group 1 and substitution

The first group is the first in line to inherit from you, excluding the other groups. This first group consists of your spouse and your children. If one of your children has already passed away, this child's place is taken through substitution. Substitution means that your children's descendants – your grandchildren – can jointly take your child's place if they happen to predecease you. Through this substitution, your grandchildren jointly inherit your predeceased child's inheritance.

Only if no one from the first group can inherit by themselves (also called 'in their own right') or through replacement by their own children ('substitution') does the second group (parents, brothers and sisters) have their turn, and so on.

Example

Bea has two children, Piet and Jan. They are each Bea's heirs for half. If Piet had died before Bea, leaving three children (Chris, Naomi, and Agnes), these three grandchildren of Bea would jointly take Pietin's place, each for 1/3. Chris, Naomi, and Agnes are therefore each Bea's heirs for (1/3 x 1/2 =) 1/6.

In which cases does the law assume substitution?

This form of substitution is most commonly seen in situations where an heir has predeceased or died. Besides this situation, there are four other situations in which an heir's place can be taken by their descendants. In total, there are five situations in which substitution can occur under the law.

These 5 situations are:

1. The heir is "unworthy." This is the case, for example, if an heir has committed certain legally defined criminal offenses against you and has been convicted of them.
2. The heir died before you.
3. The heir has been disinherited by you; the place of a disinherited heir is then in principle filled by his descendants unless you have expressly stated in your will that the disinheritance also applies to the descendants of this heir.
4. The heir rejects your inheritance.
5. The heir's right to inheritance has lapsed. The court can declare the right to inheritance "lapsed" if the heir fails to fulfill a burden imposed on them by the testator (an obligation under a will).

Substitution does not work by default if you have a will: arrange it in your will!

If someone is named as heir in a will, the substitutionary arrangement does not automatically apply if that heir predeceases you or, for example, rejects the inheritance. If you do want the descendants of this heir to receive the inheritance in their place, you must explicitly declare the statutory rules of substitution applicable in your will. Of course, you can also make completely different arrangements in your will if someone you name as heir dies before you, for example, by naming another heir or allowing a charity to inherit in their place.

Example

In his will, the father named his two daughters, Inge and Jasmine, as heirs (and made no provision for substitution). Jasmine predeceases the father. Inge is then the sole heir. Jasmine's child (i.e., the father's grandchild) does not succeed her. If the father had not made a will, then, if Jasmine predeceases, her child would legally succeed her.

Arrange substitution for other cases in your will as well; tailor it to your needs!

In your will, you can stipulate that the statutory rules of substitution also apply to the heirs you name. Substitution will also apply if one of your heirs is unworthy, rejects the inheritance, is declared forfeited, or if you disinherit this heir. You can, of course, specify in your will in which cases substitution should and should not occur. In other words, you can create a customized arrangement. If you disinherit one of your children and do not want the descendants of this child to take their place, you can stipulate in your will that the disinheritance also applies to this child's descendants (and therefore, in this case, you do not have to declare the statutory rules of substitution applicable accordingly).

Even if you want to leave certain assets or a sum of money to a specific person in your will, you can also specify whether that person's descendants should take their place if they die before you. If you've considered this when drafting your will, you don't need to immediately amend it in the event of an unexpected death (and consider the associated costs). You've already anticipated this situation and provided for it properly in your will. Your notary will also point this out to you and discuss the various scenarios with you (such as predecease, rejection, or, for example, the simultaneous death of both you and your intended heir).

Summary and tip

If you die without a will, the law determines who your heirs are. If one of your (legal) heirs predeceased you, substitution automatically occurs. This means that the descendants (usually the children) of this heir will jointly take their place. They will therefore jointly inherit the portion of the inheritance that this heir would have received from you had they been alive at the time of your death.

But be careful! The law doesn't automatically regulate this substitution if you've named your heirs in a will. If you want the descendants of an heir you've named to succeed in the event of their predecease (or, for example, if your inheritance is rejected), you must arrange this in your will yourself! You can do this by declaring the statutory rules of substitution to apply accordingly in your will.

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This article is taken from 'Met Recht Geregeld' (www.metrechtgeregeld.nl), a product of FBN Juristen.