Beheer van familievermogen door middel van certificering

Abstract

Managing family assets is a commonplace procedure. In this study, managing refers to separating the control of assets from the economic interest in them. Dutch private law has no generally applicable legal regulation that can be used to manage family assets. A common management structure used with family assets is “certification of assets”. With certification of assets, a management agreement is concluded separating control of the assets from the economic interest in the assets. A foundation (hereafter: ‘stak’) can be used for this purpose. The ‘stak’ is a specific foundation that is used in management structures. The ‘stak’ receives control over the assets and issues certificates to certificate holders. The certificate holders have a right of action against the stak. They are the economic stakeholders. The objective of this study is to examine the extent to which certification is an appropriate management structure for managing family assets. To this end, the motives of family members for managing their assets were first identified. Next, an assessment framework was drawn up for one of the motives, namely continuity. This assessment framework includes civil-law elements that a management structure must in any case contain in order to be used for the motive of continuity. After that follows a description of the generally applicable legal frameworks within which a management structure can be set up. Finally, the civil law assessment framework was used to examine the extent to which certification of assets is an appropriate management structure. The generally applicable legal frameworks and the results of applying the assessment framework to certification of assets led to the conclusion of this study. If asset certification is undertaken from the continuity motive, the following findings emerge. Certification of assets can be used for all types of property discussed. In principle, the content of the management agreement is limited only by the general limits imposed by civil law. When using a ‘stak’ as administrator, there is great freedom in setting up this foundation. However, the use of the ‘stak’ does increase the complexity of the management structure. This is particularly the case when certifying shares in a company, as it creates five relationships. As a result, certification of assets is not a management structure that can easily be used for motives that have a short time lapse or involve assets of limited value. In conclusion, certification of assets is suitable for family asset management when there is a continuity motive. However, it is important to avoid further legal uncertainty and to try to reduce the complexity of the management structure. Introducing new legislation could be an option for this. There is no single management structure that can be used for all motives for management. Dutch Civil law now has forms of administration for specific situations. However, this does not cover it. There is a need for a management structure in which an administrator exercises control and there is a certain degree of separated assets. This structure should be deployable for a longer period of time.