<\/path>\n <\/g>\n <\/g>\n <\/svg>\n <\/div>\n <\/div>\n \n\n\n\nIn legal terms, such land transfers are gift agreements. This means that the effects on persons entitled to a compulsory portion or claims due to impoverishment of the donor must be taken into account. The latter plays a significant role if the donor becomes in need of care, as the claim may also be asserted by the care provider.<\/p>\n\n
Transfer agreements can also regulate the offsetting of the compulsory portion as well as the equalization obligation between the children. It is important to make these provisions at the time of the gift in order to avoid confusion later on. Inheritance transfers also provide opportunities to reduce the compulsory portion, in particular through early arrangements (ten-year period) and the application of the lower of cost or market principle.<\/p>\n\n
If siblings of the transferee were not included in the transfer agreement (also known as “softening siblings”), a settlement payment can be agreed on the condition of a waiver of the compulsory portion. <\/p>\n\n
Family companies<\/h3>\n\n
Another popular structure is the establishment of family companies. <\/p>\n\n
The transfer of family assets, in particular real estate, to a family property company (usually a GbR or KG) offers attractive tax advantages. Often there is no real estate transfer tax, while at the same time there is the possibility of significantly reducing or even completely avoiding inheritance and gift taxes by using the respective allowances. In addition, under certain circumstances, the income tax burden can also be reduced by using family splitting within the family.<\/p>\n\n
This works as follows:<\/p>\n\n
The parents set up an (e)GbR or limited partnership and contribute real estate. They also grant the children and grandchildren (immediately or later) shares in the company. <\/p>\n\n
When setting up a family property company by contributing real estate, there is generally no real estate transfer tax as long as the shares in the company correspond to the shares in the real estate. This means that if, for example, the transferors are equal owners of the property and transfer it to a company in which they each hold a 50% stake, there is no transaction subject to real estate transfer tax. This process remains tax-free even if the shares are transferred to the next generation within a family, provided that the legally prescribed retention period is observed.<\/p>\n\n
The subsequent transfer of company shares to the next generation (e.g. children or grandchildren) does not generally trigger real estate transfer tax. However, gift tax may be payable. However, gift tax is limited or avoided through the application of allowances (Section 16 (1) ErbStG). For example, children can use an allowance of 400,000 euros (Section 16 (1) No. 2 ErbStG), grandchildren can use an allowance of 200,000 euros (Section 16 (1) No. 3 ErbStG).<\/p>\n\n
Because the value at the time of sale is decisive, subsequent increases in value are not taken into account. The tax-free allowances can be used every ten years (Section 14 (1) sentence 1 ErbStG), which means that the tax burden can be minimized over generations through strategically planned gifts.<\/p>\n\n
The asset-managing family property company not only has tax advantages.<\/p>\n\n
The provisions of the articles of association are very flexible, for example with regard to control over the company’s assets and the long-term commitment of the shareholders. <\/p>\n\n
To date, it has even been accepted by case law in family companies that the heirs of a deceased shareholder do not receive any compensation. This prevents the company from losing money when a shareholder dies and preserves the family assets for future generations. Recently, however, case law has tended to restrict this if it leads to an abusive reduction in claims to a compulsory portion, for example in the case of a significant age discrepancy and only two shareholders. <\/p>\n\n
The transferors can reserve one or more usufructuary rights – as in the classic transfer agreement. In addition, the usufruct can be reserved not only for the property but also for one or more of the transferred company shares.<\/p>\n\n
If minors are involved, the appointment of a supplementary guardian and the approval of the family court must be obtained. However, a later extension of the shares by way of a “transfer” is possible without family court approval.<\/p>\n","protected":false},"featured_media":786,"parent":1062,"menu_order":58,"template":"","class_list":["post-1075","legal_areas","type-legal_areas","status-publish","has-post-thumbnail","hentry"],"_links":{"self":[{"href":"https:\/\/notar-claas-oehler.de\/en\/wp-json\/wp\/v2\/legal_area\/1075","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/notar-claas-oehler.de\/en\/wp-json\/wp\/v2\/legal_area"}],"about":[{"href":"https:\/\/notar-claas-oehler.de\/en\/wp-json\/wp\/v2\/types\/legal_areas"}],"up":[{"embeddable":true,"href":"https:\/\/notar-claas-oehler.de\/en\/wp-json\/wp\/v2\/legal_area\/1062"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/notar-claas-oehler.de\/en\/wp-json\/wp\/v2\/media\/786"}],"wp:attachment":[{"href":"https:\/\/notar-claas-oehler.de\/en\/wp-json\/wp\/v2\/media?parent=1075"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}