Inheriting woodland raises a number of legal questions: who will inherit the woodland? How will this inheritance be passed on? Are there any special rules that apply to the transfer of woodland?
This article is intended for Luxemburgish residents
In the event of the death of the owner of woodland, the Luxembourg Civil Code sets out the rules governing inheritance, including the area of woodland forming part of the estate.
In principle, their children (or grandchildren if their child dies before them) will inherit the woodland. Depending on the circumstances, the surviving spouse may also inherit all or part of the woodland property, if he/she has opted for a “legitimate child’s portion”.
Looking at one specific case, if an owner of woodland dies leaving two children and a wife who opts for a “legitimate child’s portion”, one third of the woodland property is passed down to each of the heirs.
If there are no children, the woodland property goes entirely to the surviving spouse.
And when the owner of the woodland has neither children nor spouse, the Civil Code provides for a whole series of heirs classified in “line”, “order” and “degree”, organised according to a system of hierarchy excluding the following categories.
If there are no heirs up to the ninth degree, the estate – including the woodland – passes to the State.
By adopting a marriage contract or drawing up a will, it is possible to provide for a different distribution of the estate. However, in the case of children who are “forced heirs”, care must be taken not to violate what is assigned to them by law.
This means that several heirs may have to share the plot of land included in the estate of the deceased.
In such a case, they will be joint owners and the rules of joint ownership (“indivision”) will apply to both the conservation and the management or sale of the woodland.
To maintain the woodland in good condition, each joint owner may alone take the measures necessary.
However, for other acts (e.g. renting out or selling the woodland), a unanimous decision by all the joint heirs is required.
Obtaining a unanimous decision from all the joint owners can sometimes be hard work. This is why, in principle, each joint owner may request the division of the joint property, either consensually or through the courts. The division may be made in kind or in the form of financial compensation.
There are special inheritance rules for rural property, designed to protect the status of the heir who takes over the farm and to prevent the subdivision or splitting-up of land ownership.
The parliamentary proceedings on the bill introducing the system of preferential allotment for farmers clearly stipulated that this preferential allotment is limited solely to a viable economic unit and that forestry operations are not taken into consideration and remain subject to the normal rules of division (unless and insofar as woodland property is an integral addition to the agricultural enterprise). A precise figure was put forward during the parliamentary debates, stating that woodland should only be included up to approximately one tenth of the cultivated area subject to preferential allotment.
The recent Forest Law of 23 August 2023 seems to go in the same direction. It also cites a whole list of assets that are not included in the definition of woodland, including “agricultural land on which agricultural activity is carried out within the meaning of Article 4 of EU Regulation 1307/2013”.
In conclusion, inheritance of woodland in Luxembourg is governed by the common law on inheritance, with no preferential allocation to the heir running a forestry operation and always on the basis of a valuation at the market value of the land.
With people living longer, many owners of woodland are wondering how they can keep the next generation interested in this legacy. Here, the option of a donation could be an interesting alternative. This would involve giving a portion of one’s assets during one’s lifetime to a third party, who may be a member of the family, by means of a notarial deed and subject to gift tax, even in the case of a gift in the direct line of succession, whereas transfer by inheritance in the direct line is in principle exempt from inheritance tax.
During the celebrations to mark the 90th anniversary of the Lëtzebuerger Privatbësch association, one of the many ideas that emerged from the discussions was the creation of a network for young woodland owners-to-be. The advantages would be numerous: they include setting up a space for young people with similar questions to exchange ideas and broaden their knowledge of woodland. Banque de Luxembourg’s programmes to support NextGen families in business have reached the same conclusion: peer-to-peer is an invaluable tool for fuelling discussions about succession, thus serving as a major boost to the project.
This entire article has been published in two parts in De Lëtzebuerger Bësch magazine; you can read it again in the 5-2023 and 1-2024 issues.
To find out more about the Lëtzebuerger Privatbësch's services and mission, visit https://www.privatbesch.lu/news/film-letz-regenerate
