Inheritance law regulates what happens to the assets of a deceased person. In Germany, upon the death of a person (succession), their assets (inheritance) are transferred in their entirety to one or more other persons (heirs) (principle of universal succession).
It is important to think about how you want to organize your estate in good time. This is not only due to the desire to avoid disputes among the heirs or to provide for individual family members. An arrangement may be necessary, for example, to avoid tax burdens or to ensure that assets are protected from access by third parties.
A notary is not always necessary, but often recommended.
Legal succession:
The starting point for inheritance law considerations is statutory succession. Sometimes the will of the testator(s) coincides with provisions that the law in Sections 1924 et seq. of the German Civil Code (Bürgerliches Gesetzbuch, BGB) stipulates as a kind of standard. The heirs are divided into classes, whereby descendants (children, grandchildren), spouses and close relatives of the deceased have priority. For example, if a testator leaves a spouse (in the statutory matrimonial property regime) and two children, the wife inherits ½ and each child ¼ according to the statutory order of succession. The three of you then form a community of heirs. Modern family structures without marriage or patchwork families, on the other hand, are not optimally reflected in the law.
If the statutory succession does not lead to the desired results or additional dispositions, e.g. bequests of individual items, are desired, a regulation is usually required. The same applies if it is uncertain whether intestate succession can apply due to a foreign connection.
Designs:
Inheritance law is not limited to wills. There are various instruments available to you for structuring your estate: These include inheritance contracts, legacies, pre-legacies, conditions, instructions, pre- and post-inheritance succession arrangements and a great deal can also be achieved by means of company law regulations (bypassing inheritance law).
The freedom of design is limited by mandatory provisions of inheritance law, such as the right to a compulsory portion and the right to a supplementary compulsory portion. Nevertheless, with the cooperation of those affected, many wishes can be realized through waivers of inheritance or compulsory portions.
In some cases, inheritance regulations alone do not lead to the desired results. Lifetime dispositions, for example house transfers or measures for company succession, are then necessary. This can go hand in hand with the establishment of a family company (or foundation) early on in family life. Assets (e.g. land and apartments) can be contributed via family companies and passed on to the next generation and possibly the generation after that every 10 years, taking advantage of the tax allowances. If private and business assets are intertwined, timely structuring avoids unpleasant tax surprises. We will be happy to work with your tax advisor to help you find the right structure.
Will and contract of inheritance
A will can be handwritten or drawn up by a notary.
A handwritten will must be written and signed by hand and should contain the date and place of writing.
The notarial form offers greater security and is particularly recommended for more complex family or financial relationships. Inheritance tax considerations are important for medium-sized and larger estates. Please use our forms to submit your initial data. We can then arrange an appointment for a preliminary meeting.
Will
Although every case is different, there are also tried and tested arrangements for special life situations which should nevertheless be examined for their suitability in each individual case. The Berlin will is well-known, in which the spouses initially appoint each other as heirs and the children later as final heirs of the longer living person (§ 2269 BGB). Unfortunately, it is less well known that this arrangement is only unobjectionable from an inheritance tax perspective for smaller assets. A “Berlin will” is also rarely suitable for patchwork families with unilateral and joint children or for spouses who remarry at an advanced age.
Nevertheless, there are some typical options that your notary can recommend. Certain arrangements prevent third parties from being able to access the estate in order to pass it on to family members or children as extensively as possible. For separated or divorced spouses, there is a“divorced will” in which the custody of assets for any children is also regulated in order to prevent the divorced spouse from being able to dispose of the assets bequeathed to the children via the detour of custody. For parents with children with health impairments, the so-called “disabled person’s will” is intended to ensure that as many assets as possible from the inheritance flow into the additional care and support of the children and are not used up by the transfer to the social welfare provider. The “needy will” has a similar thrust for children in debt (or children who are dependent on state aid).
Entrepreneur’s wills: Regulation of business succession in the event of death, should be clearly separated from other property succession. Complex solutions such as pre- and post-inheritance or arrangements with usufruct are often considered in order to ensure business continuity and tax efficiency.
Better organization of company succession during your lifetime
Planning company succession during your lifetime within the framework of anticipated succession achieves significantly better results. This not only avoids potential difficulties in the interpretation of testamentary dispositions, but also allows the entrepreneur to carefully select and train his successor and to gradually transfer the company to him in order to make the transition as smooth and tax-advantageous as possible. Restructuring under the German Reorganization Act or the implementation of a holding structure and succession planning under company law can be considered.
- Caution is required in particular when splitting up businesses (e.g. through a GmbH & Co KG) and transferring business assets in order to avoid unintentionally revealing hidden reserves and provoking tax disadvantages. The “reallocation” of special business assets or the conversion of the company into a corporation can lead to sensible solutions.
Inheritance contract:
An inheritance contract is a disposition of property upon death that is drawn up in contractual form. An inheritance agreement offers more creative freedom for the binding effect than a will and does not require official safekeeping. While only spouses (and registered partners) can make reciprocal dispositions with a binding effect in a will, this option is available to all natural persons via an inheritance contract.
Notarized wills must be registered in the central register of wills kept by the Federal Chamber of Notaries to ensure that documents relevant to succession can be found quickly in the event of death.
It is important to think about how you want to organize your estate in good time. A notary can help you draw up a will that reflects your wishes and is legally effective. Notaries take the time to understand your individual wishes and the particular circumstances of your life. This begins with a thorough exploration of your intentions, an analysis of your family and financial situation and a frank (confidential) discussion about your personal relationships, including those with children-in-law and the character traits and abilities of your family members.
Other activities in inheritance law
Other typical notarial activities in inheritance law are applications for certificates of inheritance or the notarization of deeds of inheritance.
Application for a certificate of inheritance.
Application for a certificate of inheritance
Inheritance:
A notice of inheritance must be made within six weeks of becoming aware of the inheritance. The waiver must be declared to the probate court but must be publicly notarized. Sometimes the probate courts are overloaded and refer the person concerned to a notary. Even if the notary can notarize the signature, those affected must still ensure that the original declaration is received by the probate court in good time.