Inheritance without a will: facts, tips, spouses and inheritance law
Inheritance without a will – The law of succession comes into force when there is no will. This governs who receives the deceased’s assets after a death and how this is done. Communities of heirs may be formed where there are several heirs and the estate passes to them. Communities of heirs are automatically formed after the death of the deceased if there are multiple heirs. These must then divide the estate among themselves and make joint decisions about inherited property, such as real estate. If you want to decide for yourself which relatives inherit which property, you should draw up a will and regulate everything precisely.
The legal succession – this is how you inherit according to the law
Legal succession regulates both the order of heirs and the individual amounts that are inherited. First the closest relatives, such as children and grandchildren, inherit and then the more distant relatives, such as nephews and nieces. Closer relatives generally exclude the more distant relatives from inheritance. The proportion to which the individual heirs inherit is documented in the certificate of inheritance.
The legal succession is based on the Parantel – or order system. It divides the relatives into different orders. Accordingly, children and grandchildren of the deceased belong to the first order. Parents, siblings, nieces and nephews of the testator are assigned to the second order. The third order includes grandparents, uncles and aunts as well as cousins of the deceased. Spouses and registered partners are not considered relatives, but have the right of inheritance as spouses. This gives them a special status and limits the right of relatives to inherit. Relatives of the preceding order always exclude relatives of a subsequent order from the succession.
The spouse – special position in the law of succession
Although the spouse or registered partner is not considered a relative in the legal succession, he or she has a special position. If the deceased leaves both a spouse and children, the spouse inherits half of the estate and the children the other half. However, if there are more than three children, the spouse receives only one-fourth and the children divide the remainder among themselves. If there are only second-order relatives or grandparents, the spouse receives half of the estate and the second- and third-order relatives share the other half. If there are no relatives of the first, second or third order, the spouse inherits everything.
If the deceased leaves neither relatives nor spouses, the state inheritance law applies. The federal state in which the deceased last had a residence inherits the estate.
Heirs of the first order – children and grandchildren
The first order includes the children and grandchildren of the deceased. Non-marital children born after 1 July 1949 are also entitled to inherit. If a child of the deceased and the spouse are alive at the time of death, both inherit half. If several children are living, the inheritance is divided between them and the spouse. If children of the deceased are already deceased, the grandchildren inherit.
Explained by example: If the deceased leaves his mother, his spouse, 2 children with two grandchildren each and a deceased child with one grandchild, the following succession results. The mother is not entitled to inherit because she belongs to the second order and there are heirs of the first order. The spouse and the two living children inherit in equal shares. The grandson of the deceased child takes the place of the parent in the succession and thus inherits in equal shares with the two living children and the spouse. The grandchildren of the living children also do not inherit.
Heirs of the second order – parents and siblings
If there are no children or grandchildren, the heirs of the second order. The second order includes parents, siblings, nephews and nieces. If both parents of the deceased are alive at the time of death, the estate is divided in half. However, if one parent is already deceased, the descendants of this parent, i.e. siblings or nieces and nephews of the deceased, take their place.
Explained by example: The testator leaves his mother, a sister with two children, a nephew of the deceased brother and a half-sister from the father’s second marriage. The inheritance is therefore distributed as follows: One half of the estate goes to the mother’s line and the other to the father’s line. Since the mother is still alive, she receives half of the inheritance. Since the father is already deceased, his inheritance falls to his children. In this case, to the sister, the deceased brother and thus the nephew of the deceased, and the half-sister from the second marriage. These three divide the other half of the inheritance. The children of the still living sister do not inherit.
Heirs third order – grandparents and aunts / uncles
If the deceased leaves only heirs of the third order, the inheritance is divided as follows. The inheritance of the deceased falls to the grandparents and their descendants. If a grandparent has already died, the inheritance also falls to the aunts, uncles, cousins of the deceased.
Explained by example: If the testator leaves only his grandmother and an aunt with two children, they inherit as follows. The grandmother receives half of the estate. Since the grandfather is already deceased, his descendants inherit his share. In this case, therefore, the aunt inherits the other half of the estate. However, the two children do not inherit.
Legal succession at a glance – Who inherits if there is no will?
Adopted children – inheritance claims against biological and adoptive parents
Adoption confers legal kinship on a child. If the child is a minor at the time of adoption, it acquires the legal status of a joint child of both spouses and thus belongs to the heirs of the first order. Thus, not only the adopted child inherits from the parents, but also vice versa. With the adoption, however, the child loses all claim, rights and duty to the blood relatives and is therefore no longer entitled to inherit from the natural parents. This is regulated differently in the case of adopted children who have reached the age of majority. The kinship relations to the bodily parents do not expire and thus an adopted child of full age can be entitled to inherit from up to four inheritance parts, the bodily and the adoptive parents. However, there is no legal right to inherit from the relatives of the adoptive parents.
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All questions about inheritance without a will
Inheriting without a will can often lead to disputes within the family, as the last will and testament of the deceased is not made clear. In order to clarify all questions in such a case and to avoid disputes, the experts of Lukinski have answered all important questions around the topic of inheritance without a will.
What is the intestate succession?
If no will has been left or if it has been found to be invalid, the legal succession applies. This is based on the degree of kinship and the marital property status of the testator. The relatives are divided into three orders for this purpose.
When does the spouse inherit?
In principle, the spouse always inherits. However, how much he inherits depends on the remaining relatives of the deceased. If there are no relatives, the spouse inherits the entire estate alone.
When does the state inherit?
The state inherits if there are no relatives or other dependents, such as the spouse or partner. This is stipulated in the Fiskalerbrecht according to § 1936 BGB.
When do siblings of the deceased inherit?
Siblings of the deceased inherit if there are no first-order heirs, i.e. children or grandchildren of the deceased. These belong to the second order and only inherit if at least one parent has already died, otherwise the parents of the deceased inherit the estate.
Can half siblings inherit?
Half-siblings are on the same level as full siblings according to the legal order of succession. They both belong to the second order and inherit if neither children, grandchildren or at least one parent of the deceased is still alive.