Heir problems? Get free legal advice!


Questioner

We are facing the following problem. I've asked questions before and gotten good answers but in case you haven't read this, here's the situation: On March 1st, stepmother suddenly passed away. Father had already passed away in 1999, which my sister and I never heard anything about. Stepmother has a will in which we as stepchildren are not mentioned, but a foundation is the heir. We requested father's will and it states that he names his 2 daughters and his wife as heirs and that stepmother is executor. The will also states that if we do not claim our share (which we could do since the will was drawn up in 1998, before the law change of 2003) 4% per year interest must be charged. With her death, the claim we had on our father's inheritance has been released, so we are looking into all kinds of things. Now it turns out that stepmother did not carry out her duties as executor. Firstly, she did not inform us so we were unable to obtain an inventory of the estate. Secondly, no information is known to the tax authorities because no inheritance tax has been paid and inspection of income tax or bank records yields nothing because these things are only kept for 7-10 years (father's death was 17 years ago now). We received an email from the notary in charge stating that they are the notary in charge and that they wanted to know whether there were any other children besides me and whether we still have any claim to the deceased's estate in connection with the death, with regard to the paternal share of the inheritance. Email sent back with details of my sister and myself and that we have a claim according to father's will. Received an email from the notary stating that we must indicate the size of our potential claim (quote email '...If you have a claim, you must demonstrate this.'). So we started looking and as a result we couldn't find anything because such a long time had passed and the legal retention period had expired. My sister went to the notary and was told that there might be a possibility of a settlement and with the 4% interest per year over 17 years it could quickly amount to 15,000 euros. Sent an email to the notary to see if there was a possibility of settlement. Received an email back today with the following: '...In response to your email of 3 August, I would like to inform you that the heir maintains her position that if you believe you have a claim on the estate of the deceased as a creditor, you must prove this with written evidence.' My question is how can we do that? Is it useful to go to court (cantonal or district court?) and what should we ask for (liquidator?) The heir of the stepmother, the Foundation, has already vacated the house in July and therefore any written evidence that we may have may have disappeared if the stepmother has already kept all those papers. I also think it is strange that if the stepmother has not performed her task as executor, it is then said that the affected children must then demonstrate (in writing!) how much the claim is. Doesn't this obligation pass to the heir of the executor? If so, is this described somewhere in the law? I know that we can of course go to court, but I live abroad and both my sister and I have a (small) WAO benefit and therefore no funds to hire a lawyer. That is why I want to try to find out as much as possible myself and see if a settlement is possible. The biggest problem we are facing is that the heir says that we must prove any claim in writing and I want to know if there is a law stating that this task is transferred to the heir of the stepmother/executor so that I can use that to avoid having to go to court and still get a settlement. Thank you for your time and effort in reading this.

Lawyer

The existence of a claim does not have to be proven in writing, but on the other hand it is understandable that if you believe you have a claim, the burden of proof lies in principle with you. You write: The heir of the stepmother, the Foundation, has already vacated the house in July and therefore any written evidence that we may have may have disappeared if the stepmother has already kept all those papers. I gather from this that the foundation is the heir of your stepmother and that there may be a property in your stepmother's estate. If so, have you investigated whether this property may have been (partly) in your father's name? If so, this could be a starting point to further specify and safeguard your possible rights by (precautionary) attachment of the property. It is important to substantiate your claim so much that, if it comes to a procedure, you have a good chance that the burden of proof can be reversed. This means that the judge will then assume that your claim is correct and the foundation will have to prove that your claim is unjustified. This could also be a reason for the foundation to show willingness to settle, outside of a legal procedure. If you would like to contact me, please use the direct contact option of rechtswinkel.nl

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