Inherit correctly – The inheritance law proves again and again as extremely complex topic structure, which is connected by many concerning with large uncertainties and ignorance. If the topic of inheritance becomes acute, it is therefore always advisable to turn to experts such as notaries, tax consultants, estate agents and lawyers. Nevertheless, it makes sense to also read up on the subject yourself in order to be able to save costs and time. If you approach the subject of inheritance with a certain basic understanding, you will understand the technical language of the experts better and go into the inheritance matter with less fear. After our extra on the topic of the right inheritance, we now present our special on the right inheritance:
The testator is free to decide how much he wants to bequeath to whom
The testator is completely free to decide what should happen to his assets after his death. However, in order for a will to be truly valid, it is important that the testator is familiar with the specifics of drafting a will. Small mistakes in the wording can already lead to parts of the will not being interpreted correctly or not being valid in the first place. For this reason, it is of absolute necessity that the will is legally unambiguous.
Facts about the compulsory part
Close relatives cannot be completely excluded from the testator’s inheritance. Even in the event of disinheritance, which was agreed in the will, the relative can sue for the statutory compulsory portion. Incidentally, disinheritance can be effected without giving reasons.
Therefore, it does not make sense for the testator to disinherit a person who is entitled to the compulsory portion. This only leads to disputes. Inherited is nevertheless.
The compulsory portion is half of the statutory share of the inheritance. The compulsory portion is not automatically awarded to the heir by the probate court. The compulsory portion is also not noted in the certificate of inheritance. This means that the compulsory portion must first be claimed by the beneficiary of the compulsory portion from the other heirs.
However, there are special circumstances in which the testator is entitled to disinherit the child in such a way that the child cannot inherit the compulsory portion. This is the case if the child has been sentenced to a prison term of at least one year without probation for a criminal offence.
If a child is also to be deprived of the compulsory portion, the testator must record the motives in the will. Another legally valid reason is when the beneficiary of the compulsory portion seeks the life of the testator or another close person. If the beneficiary of the compulsory portion is guilty of a crime such as theft or bodily harm against the testator, he or she may also be deprived of the right to the compulsory portion.
But which persons count as next of kin and are therefore entitled to a compulsory portion? This includes children. It does not matter whether they are biological or adopted children. If the testator was married at the time of death, spouses also count as close relatives. The same applies to a registered civil partnership. If the deceased has no children, the parents count as close relatives. Siblings of the deceased, on the other hand, are not entitled to a compulsory share.
The heir’s compulsory portion may be increased if the testator made gifts to other relatives up to ten years before his or her death. This is a claim to a supplement to the compulsory portion. This is the case, for example, if the testator gave away a property five years before his death. The beneficiary of the compulsory portion can demand that the compulsory portion is now calculated as it would have been if the gift had not been made. His or her compulsory portion increases as a result.
It should be noted that the beneficiary of the compulsory portion is not the owner of the estate. He therefore has no say whatsoever in what is to be done with the estate.
The legal succession must also be observed in the will if it is not to lose its validity. If the succession was not observed by the testator, the person concerned can enforce his or her claims in court.
If the claim to the compulsory portion is not asserted within 3 years after the death of the testator, the claim loses its validity. In addition, the claim to the compulsory portion only becomes valid when the testator has died. The compulsory portion cannot be claimed during the lifetime of the testator.
Inheritance and bequests: Compulsory portion
Calculate compulsory part – instructions
Legal succession in the case of inheritance
Legal succession always applies if the testator has not made a will. If there are no relatives, the inheritance passes to the state. However, this is hardly ever the case in Germany.
In the law of succession, kinship is divided into different degrees of order.
If heirs of order I exist, heirs of order II are completely excluded.
The children of the deceased as well as the grandchildren belong to the degree of order I. The children inherit in equal shares. If one of the children is already deceased, his or her children inherit.
If a deceased dies leaving neither children nor grandchildren, the second-degree relatives inherit. These include the parents of the deceased and the siblings. If a sibling has already died, the inheritance passes to their children, the nieces and nephews. If there are no second-degree relatives, the third-degree relatives are the grandparents and their children. These are then the aunts and uncles and the cousins.
If no marriage contract has been agreed and the principle of community of accrued gains applies, the spouse of the deceased receives half of the inheritance alongside the children. In addition to the parents and siblings, the spouse even receives three quarters of the inheritance.
This can become dangerous if, for example, a property is inherited. In this case, the spouse has no sole claim to the property. In order to avoid this problem, many spouses opt for the Berlin will.
In a Berlin will, the longer-living spouse inherits everything. The children are excluded as heirs. Only after the death of the second spouse does the inheritance pass to the children. In this way, the property passes to the spouse without an inheritance dispute. However, even in this case, children can override the testator’s last will and claim the compulsory portion.
To prevent this from happening, the will can be amended to include a penalty clause in the event that the compulsory portion is claimed. However, this usually does not have the desired effect of the testator. Children can nevertheless claim their compulsory portion after the death of one parent. However, this becomes economically less attractive, as the inheritance is higher after the death of the second parent.
Parents are not obliged to treat their children equally in their wills
Parents are not obliged to treat their children equally in the will, even if this could avoid disputes after death. However, it is not possible to bequeath certain items of the estate only to certain children. For example, that the first child should inherit only the real estate, while the second child should become heir to the securities. Instead, it is only possible to determine with which quota the individual child receives how much of the total inheritance.
Will and custody
For the testator’s will to be valid, it must be handwritten and, of course, signed. It is absolutely fatal to type the will on the computer for the sake of better legibility. Even if it is signed, it is not valid.
Most testators choose to keep their wills at home. However, this carries the risk that it will be lost, cannot be found after death or that one of the heirs will make it disappear if it falls into their hands and disadvantages them.
It is therefore more advisable to place the will in the care of the probate court. This ensures that the will will be used in any case after the death of the testator. Anyone who decides against this form of safekeeping would do well to inform a trustworthy person about the existence and location of the will.