We support you with our extensive experience if you have any questions related to forced heirship, communities of heirs and other topics. If you are facing a challenge concerning national or international inheritance law, we will accompany you on the journey to success.
- Community of heirs
A community of heirs consists of several heirs who can, in principle, only decide together about the inheritance. Often, this leads to conflicts, and we would be pleased to offer you legal support to resolve those.
- Disclaimer of inheritance
When you discover that the decedent has died and that you are an heir, you have six weeks (or six months in case you are abroad at that time) to declare the disclaimer of succession at the probate court in case you do not want to accept the inheritance. We can support you in making this decision as well as in appealing against your former decision.
- Forced heirship or statutory share
If close relatives of the testator were disinherited, they still have a claim to a statutory share. In such cases, we can provide you with advice and assistance if you are entitled to a statutory share or if you are an heir.
Questions and answers about the inheritance law
Hardly anyone likes to talk about death and only very few people think about the settlement of their estate in advance or settle it comprehensively. The topic is associated with strong emotions and an unpleasant feeling.
When a person dies, however, there is a lot to settle from a legal point of view, and so a number of questions often arises in this context. In the following, we would like to provide you with an overview of the most frequently asked questions by our clients. In addition, we will be happy to advise you in your specific inheritance law case or with regard to succession planning or advance directives and we will support you with our many years of experience in national and international inheritance law.
Questions on the part of the testator:
In inheritance law, the term “estate planning” is used when a future testator makes arrangements during their lifetime for the event that they die. This type of provision makes it much easier for the surviving dependents to handle the estate and to divide and use the inheritance according to the will of the testator. Unpleasant family disputes and nerve-racking court proceedings, which often last several years, can thus be prevented and taking leave of the deceased made easier.
However, succession planning and creating advance directives also means clarifying key issues relating to old age, illness and frailty. With the help of a precautionary power of attorney or bank mandate, a living will and an advance directive, you can decide for yourself what should happen in the event of illness or need for care. Those who take care of their provisions at an early stage can spend the rest of their lives carefree in the knowledge that they have settled everything for the unpleasant event of an emergency and have not left their surviving dependents in the dark about their own last will and testament.
The compulsory portion or statutory share secures that the beneficiaries receive a minimum share of the estate of the deceased. The idea behind this is that the testator has a certain duty of care for close relatives such as the spouse or their own children even after death. There are various reasons for not wanting these legal heirs to share in one’s estate and therefore disinheriting them. However, these relatives are generally entitled to the compulsory portion regardless of the will of the testator and this amounts to half of the statutory inheritance quota. In particularly serious cases, it is possible to deprive the relatives of the compulsory portion by means of appropriate wording in the last will if, for example, they are criminals or are seeking the testator’s life.
The legal obstacles to deprive someone of their compulsory portion are very high. However, it is possible to reduce the compulsory portion by certain measures when still alive. This is often done by lifetime donations to third parties or one’s own children which reduce the estate. Especially in case of real estate this can be useful as real estate often constitutes a big part of the estate as it has a high value. When trying to reduce the compulsory portion, many things should be taken into account as the person entitled to compulsory portion has a claim to augmentation of compulsory portion if the decedent dies within the first ten years after the donation which is reduced by 10% each year. Furthermore, the reduction of the compulsory portion can get problematic if the donor reserves a right to continue living in the real estate or any other right to the subject of donation.
To make sure not to fall into a trap and actually reduce the compulsory portion in alignment with your own wishes, we highly recommend seeking legal advice. With us, you are legally on the safe side!
One might assume that in inheritance cases it only matters what properties the decedent had at the time of his death and that this is all the heirs and the persons entitled to compulsory portion can claim. However, the legislator wanted to avoid that statutory provisions can be fully bypassed by lifetime donations. Therefore, such gifts are taken into account to a certain extent in case of the decedent’s death and can alter the claims of the decedent’s close relatives in a way that was not intended.
The persons entitled to compulsory portion have a claim to augmentation of compulsory portion if less than ten years have passed after the donation or if the testator still had reserved a right to the subject of donation. Just like the claim to compulsory portion, the claim to augmentation of compulsory portion constitutes a payment claim of the entitled persons against the heirs. If, for instance, someone disinherits their son and gives a plot of land as a gift to their daughter, this may be out of a good intention however, it can lead to her brother having a very high claim against the daughter who has no choice but to pay that amount of money.
Apart from this risk, a lifetime donation provides certain benefits as well. In regard to taxes, those advantages can be quite significant compared to statutory provisions on inheritance tax. We would be pleased to consult you concerning the advantages and disadvantages of lifetime donations and to consider all relevant options for your specific situation with you.
Do you already know who you want to inherit your estate, but want to ensure that someone else can use the estate for a certain period of time in the event of your death? If so, it makes sense to include clear instructions regarding prior and subsequent inheritance when drawing up a will. In a joint will of spouses, it is often agreed that in the event of the death of one spouse, the other spouse will receive the estate first and the children should only inherit once the other spouse has passed away as well. The surviving spouse is referred to as the provisional heir and the children are the subsequent heirs. If you want to leave your estate to your grandchildren, another option would be to stipulate that their parents are to inherit the estate first as provisional heirs and then the grandchildren receive the estate as subsequent heirs when they come of age, for example. For the purpose of asset protection, prior and subsequent inheritance can also be useful in other constellations, for instance when divorced spouses, patchwork families or business succession play a role.
The appointed provisional heir is obliged to administer the estate properly in such a way that the subsequent heir is not disadvantaged by any dispositions. For example, the provisional heir may not sell any real estate that is part of the inheritance.
The actual structuring of prior and subsequent inheritances should be accompanied by a lawyer in order to avoid later misunderstandings in the interpretation of the will and to inform the parties involved of possible disadvantages from a tax perspective. We would be happy to advise you on your individual questions relating to estate planning.
In a last will and testament, anyone can determine what is to happen to their estate in the event upon which the estate passes to the heirs. This does not require a notary – even a few handwritten lines on a piece of paper can constitute a will. However, we recommend to seek legal advice to ensure that your last will and testament is actually carried out in accordance with your wishes. This will ensure that the inheritance contract or will does not raise any questions and instead clarifies every important aspect.
In a will, you can determine who you want to appoint as your heirs, who you want to leave a legacy to, what conditions you want to impose on both and how the execution of the will should be carried out. Those arrangements can be made regardless of family relationships.
An inheritance contract, on the other hand, can only be concluded with other persons – for example an heir or a legatee – and subsequently binds both parties, meaning that the testator can no longer make a deviating testamentary disposition without a corresponding clause in the contract. This can be useful if the appointment of an heir in the inheritance contract is linked to a specific counter-performance and you appoint the person who will care for you in old age as your heir, for example. An inheritance contract is also the best choice for benefitting non-married partners, which is why unmarried couples often use this alternative to a will. It is important to note that an inheritance contract only becomes legally effective with notarization – unlike a will.
A spouse’s will is the joint will of married couples in which the spouses are each other’s beneficiaries. The most common form of a spouse’s will is the so-called “Berliner Testament”, in which the other spouse is appointed as sole heir upon the death of one spouse and the joint children later on inherit everything when the second spouse also dies. The problem with this form of will is that people often forget that the children have a claim to a compulsory portion even in the event of the first death, which they can assert against the surviving spouse. Furthermore, the surviving spouse may wish to make a different testamentary disposition after the first succession, but this is not possible due to the binding effect of the spouse’s will. It is also difficult to amend or revoke such a will during your lifetime. We would be happy to advise you on how you can draw up a joint will that will still meet your expectations in the distant future.
Especially in conflict-ridden family situations, there is often a risk that a dispute will break out between the heirs over the division of the estate. But even otherwise very harmonious families can get into emotionally grueling conflicts due to grief, an uncertain inheritance situation and possible misunderstandings. This can sometimes lead to years of court proceedings that put an enormous strain on the family.
Poorly worded wills can lead to disputes that were not foreseen, let alone intended, by the testator. It is therefore important to consider exactly what your own wishes are and what interests your future heirs have when making provisions for inheritance. It can be useful to sit down with the future heirs and involve them in the estate planning. The concept of mediation under inheritance law has proven its worth here, as the discussion and planning are conducted by an external mediator in a way that focuses on the interests of all parties, and everyone works together to find a solution that ultimately satisfies everyone involved.
As it is often difficult to talk to relatives about one’s own death, many people want to make their last will and testament without the knowledge of their future heirs. If these are formulated clearly and in legal jargon, the will and testament often avoid disputes. However, if there is a chance that conflicts may arise in the event of an inheritance, various clauses can be included in a will to set out how conflicts between the heirs should be resolved, for example by including a mediation clause in the will so that the heirs initially seek an amicable solution instead of a legal dispute.
We will be happy to advise you on conflict prevention in testamentary dispositions and find a solution with you that will avoid unnecessary disputes between your family members as far as this is possible.
Questions on the part of the heirs:
If you have become an heir on the basis of intestate succession or a testamentary disposition, you can either accept the inheritance or disclaim it within six weeks. This period begins when you learn of the inheritance. If the deceased’s debts were greater than his assets or if the inheritance is less than the compulsory portion to which you are entitled, it may make sense to waive the inheritance. However, you may also be in debt yourself – as the sole heir, you can pass on the inheritance to your children without having to pay off your own debts first.
To waive an inheritance, you must either declare your waiver in person at the legal application office (Rechtsantragsstelle) of the probate court or before a notary, who will forward your declaration to the competent court.
This is not necessary in order to accept an inheritance, as you automatically become an heir when the inheritance occurs, and it is assumed that you accept the inheritance if you do not expressly waive it.
Certain legal heirs of the deceased who have been excluded (disinherited) from succession by the deceased in a last will and testament are entitled to a compulsory portion (statutory share). This includes the children and the spouse or registered partner of the deceased. If the testator’s children are already deceased, the grandchildren are entitled to a compulsory portion. In case the deceased has no descendants, the parents of the deceased are entitled to a statutory share.
If the testator has made a gift to another person before their death, the persons entitled to a compulsory portion are additionally entitled to an augmentation of the compulsory portion in the amount by which that portion would have been increased if the gift had not been made. Or to put it more simply: when calculating the statutory share, it is assumed that the gifted item is still part of the inheritance, so that the person entitled to the compulsory portion can make a higher (financial) claim. This is particularly relevant when it comes to gifts of real estate or other very valuable items. However, the person entitled to a statutory share is only entitled to such a claim if the gift was made within ten years prior to the inheritance. Special regulations apply to gifts between spouses. We will be happy to help you determine whether you are entitled to an augmentation of the statutory share and assist you with the legal assertion of your claim.
In the case of succession, it must first be determined whether the testator has left a testamentary disposition that specifies who is to receive what share of the estate. If such a disposition – for example a will – excludes a close relative from the inheritance who would have been entitled to a share of the estate under the statutory provisions of inheritance law, this person is entitled to a compulsory portion.
If the testator does not leave a will or other testamentary disposition, the statutory succession is applied, which is regulated in the German Civil Code. According to German inheritance law, the testator’s children (descendants) inherit first in equal shares. If the deceased has no descendants, the parents of the deceased become the legal heirs. If an heir is deceased, their descendants take their place and the share to which the heir would have been entitled is divided among their descendants. If the deceased’s children have passed away, the grandchildren become heirs. If the deceased has no descendants and their parents have already died, their parents’ children – i.e. the deceased’s siblings – inherit. Legal succession continues through the deceased’s grandparents and great-grandparents, with the deceased’s closest relative always becoming the heir. The deceased’s spouse is also entitled to a share of the estate, with the share depending on which other heirs exist alongside them.
In inheritance law cases, many emotions can occur, on the one hand in connection with the death of a relative and on the other with the question of what will happen with their estate. It is not uncommon for disputes to arise between heirs and those entitled to a compulsory portion, which often have to be settled in court during time-consuming and costly proceedings. All the energy that has to be invested in such proceedings rarely leads to a satisfactory outcome, as the court focuses on the hard legal situation rather than the needs of the parties involved. In some cases, this leads to a lasting disruption of families. In the event of a dispute, however, there are out-of-court alternatives, such as mediation, in which the parties involved work together with the support of a professional mediator to find a solution that takes everyone’s interests into account equally. In most cases, mediation leads much more quickly and cost-effectively to a result that everyone is satisfied with and that protects family relationships. At our law firm, we also offer inheritance law mediation and will be happy to advise you if you are unsure whether such a procedure could help you.