Will

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 also be necessary to avoid tax surprises or to ensure that certain assets remain in the family or are protected from access by third parties.

A notary is not always necessary, but often recommended. Use our form for preparation.

Statutory succession: The starting point for the consideration of inheritance law is statutory succession. If the statutory succession does not lead to the desired results or further supplementary dispositions are to be made, e.g. bequests of individual items, there is a need for regulation. This can also be triggered if it is uncertain whether the statutory succession applies due to a foreign connection.

1. Will: A will can be handwritten or drawn up by a notary. A handwritten will must be written and signed by hand and contain the date and place of writing. The notarial form offers greater security, especially in the case of more complex family or financial relationships. In the case of medium-sized and larger assets or family businesses, inheritance tax considerations are also important.

• Although every case is different, there are also tried-and-tested arrangements for special life situations that should 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). What is less well known is that this arrangement only raises no inheritance tax concerns for smaller assets. In patchwork families with unilateral and joint children or with spouses who remarry at an advanced age, a “Berlin will” is also rarely suitable.

• There are typical drafting options for separated or divorced spouses, keyword “divorced will”, for parents with children with health impairments (so-called “disabled will”), or for children who are dependent on state assistance (“needy will”). The arrangements prevent third parties from accessing the estate. in order to provide them to family members as extensively as possible.

• 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. However, company succession planning achieves significantly better results during your lifetime in the context of anticipated succession. 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 corporate succession planning can be included.

• Tax aspects are important for family businesses or properties that are partly used for commercial purposes (special business assets). 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. Converting the company into a corporation can also lead to sensible solutions. In such cases, close coordination between the tax advisor and the notary is advisable.

Joint wills are open to adult spouses and registered partners. In contrast to simple wills, it is possible to link testamentary dispositions in such a way that the dispositions of both partners are linked and can only be changed under certain conditions. Compared to individual wills, joint wills have the advantage that they allow for interdependence of testamentary wishes, which is not the case with individual wills.

When drafting the ‘binding nature’ of the dispositions, a notary will clarify which dispositions are mutually dependent and which are independent of each other. This helps to ensure that there is clarity about the testamentary freedoms of the surviving partner after the death of one partner.

Use our forms to prepare a meeting appointment.

For spouses and life partners who do not have full legal capacity, as well as for fiancées, the route to an inheritance contract pursuant to Section 2275 para. 2 of the German Civil Code (BGB) is the only option to establish inheritance regulations with binding effect (comparable to a spouse’s will).

In certain 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. However, measures may also be necessary if private and business assets are entangled in order to avoid unpleasant tax surprises.

A great deal can also be achieved through company law regulations (bypassing inheritance law).

We will be happy to work with your tax advisor to help you find the right structure.

Further information can be found on the information portal of the Federal Chamber of Notaries: Inheritance and Giving | Notar.de