A minor is a person under the age of 18. The estate is the total of the deceased's assets, debts and partners. A minor can be a partner in an undivided estate either by universal testament or by succession. A guardian must be appointed to administer the estate. The child is then the principal of the trustee. It is important to appoint a guardian, otherwise the child may be left in a weak position in the decision-making process of the estate. It has been argued that without a guardian, the child could suffer a loss of rights and that a guardian increases the child's legal protection.
Deputy guardian for a minor
As a general rule, the child's parents are joint guardians of the child from birth. In such cases, the parents jointly exercise legal guardianship on behalf of the child in matters concerning the estate, such as deciding on maintenance of the estate's assets, applying for an estate administrator, or initiating the division of the estate. However, an exception arises in a conflict of interest situation, meaning a situation where the parents are co-heirs in the same estate. When there is a conflict of interest, a parent is disqualified from acting as a guardian, for example, in the division or partition of an inheritance. In such cases, a substitute guardian will be appointed for the child. A guardian must not make decisions freely according to their own will, but in all their actions, they must consider and promote specifically the child's interest and well-being.
A lawyer, for example, can be proposed as a deputy guardian and an application is made to the DVV.
In addition to the guardian proactively seeking to promote the child's best interests, the Digital and Population Data Services Agency (DVV) also supervises the guardian's activities. A copy of the inventory of the estate must be sent to the DVV within one month of the inventory being compiled. An entry must be made in the guardianship register if the child has assets in the estate amounting to at least €20,000 to be managed by the guardian. It is important to note that debts of the estate do not need to be deducted when calculating the €20,000. This is therefore a gross sum. The guardian must retain such assets as the child will need during the guardianship or later, or which are otherwise of special value to the child.
When a property belonging to the estate is to be sold, the Digital and Population Data Services Agency (DVV) grants permission for the sale on behalf of a child. The guardian makes the application for this. The DVV also grants permission for other specific legal transactions within an estate on behalf of a minor. Such legal transactions within an estate include, for example, an agreement to transfer the estate to the administration of an estate administrator, renouncing an inheritance share, or signing the inventory deed or deed of distribution. The guardian must justify in their application to the DVV how the legal transaction promotes the best interests of the principal (the child). The intended legal transaction must therefore be quite clearly established in detail for permission to be granted.
Article written by Tuula Rainto, lawyer. He specialises in family law. You can always call him for a free 15-minute consultation. p. 010 2995090
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Sale of the property of an undivided estate
Can an estate be sold or donated?
Applying for an estate administrator in a deceased's estate