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The opposite side
From the perspective of the Federal Chamber of Notaries, the risk of misuse of proxy powers is reduced by education by notaries. "A power of attorney is a matter of trust – this is a very important point that is mandatory for any legal advice from the notary," emphasizes Thomas Diehn from the Federal Chamber of Notaries in Berlin. “Bringing the risk limitation and the appropriateness of the certificate into a balanced relationship is the essential point in the individual design of the power of attorney.
Even if the notary rarely costs more than 100 euros due to the statutory fees, the notarial deeds are still the best protection against misuse. ”
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The legal situation
According to German law, a person with a power of attorney authorizes another person to carry out all or certain tasks for the proxy in the event of an emergency. With the precautionary power of attorney, the proxy becomes a representative in the will, that is, he decides in place of the proxy who is no longer able to make a decision.
The legal basis for the act of the proxy can be found in the Civil Code (§ 164 ff. BGB; relationship between the principal and the proxy, so-called mandate: § 662 ff. BGB).
Notaries create legally secure individual power of attorney and should advise on the scope and risks of granting power of attorney. You coordinate the pension certificates with other important notarial decisions, in particular on death (will, inheritance contract). The legal basis for this is the certification law.
Supplements on wills are ineffective without proper signature. The OLG Celle ruled on September 22, 2011 (AZ 6 U 117/10) that the last ruling must be written by hand and signed with the testator’s first and last name – a testator writes an additional one in his will this ineffective, If you only with D.O. is signed and it is not the testator’s initials.
The notary’s costs for the certification of a will are not advertising costs. The Saarland Finance Court ruled on February 13, 2007 (AZ 1 V 1336/06) that notary fees for the certification of a will cannot be deducted from tax as advertising costs.
Formulating the will itself legally punctually can lead to major disputes. Thus, the regional court of Munich I (judgment of January 17, 2006, AZ: 23 O 13892/03) had to deal with what a testator meant by the term "other personal belongings" in his will. The court ruled that the testator did not mean the term bank deposits, securities, savings bank letters, cash and securities in the home, and automobiles.
The district court of Coburg (U. v. 16.8.2000, AZ: 22 O 538/99) approved two siblings who did not want to accept that their father had already given a large part of his property to his niece, i.e. her cousin, during his lifetime , They sued the cousin for retransmission. The district court of Coburg complied with the wishes of the siblings, because the father had concluded an inheritance contract with the mother who had died earlier, with which the siblings were determined as heirs of the last dying. By turning to the niece, the father made an "impairing gift", that is, illegally diminished the inheritance. The donation should therefore be reversed.
Dogs cannot inherit. Pets are not legal entities and therefore cannot inherit. A dog owner can therefore not use his dog as an heir alongside his family members (LG München I, decision of 22.01.2004, AZ 16 T 22604/03).
Munich lawyer Michael Bonefeld from Bonjur Rechtsanwälte sees an increasing risk of abuse of uncontrolled powers of attorney. He makes three typical phases in hereditary crawlers: sneak up, make dependent and rip off.
People who need help would first be ensnared and then isolated from their other social contacts. According to this, those in need of help would be made dependent by the shepherds slipping into the role of helper and usually enforcing the granting of a power of attorney. Finally, the victims are given a guilty conscience that they owe their helpers something.
The power of attorney is misused for self-service of the property or the authorized representatives have the victims adopt them or use them as heirs. "Most of the powers of attorney are not notary, but filled out forms from the Internet or from the trade – these forms often do not contain any protection or control," warns Bonefeöd.
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"When notarizing a power of attorney, the notaries usually point out the powers of abuse and control, but then often do not specify a variant for checking in the form," warns inheritance lawyer Bonefeld. However, many notaries must be held to the advantage that these at least link the requirements for issuing the power of attorney to the proxy.
In order to reduce the risk of misuse, the power of attorney should be clearly regulated in the spirit of the power of attorney and the proxy should be checked. The power of attorney includes the precise determination of the scope of the power of attorney (general power of attorney, special power of attorney for areas such as banking or health matters or a sub-power of attorney), the authorized representative (one or more persons trusted) and the effectiveness of the power of attorney (power of attorney should only be used in certain cases) Cases or situations apply and this should also be effective beyond death).
Because courts do not automatically control the powers of attorney, Bonefeld recommends agreeing an agency agreement separately with the power of attorney, which regulates what the proxy can actually do with the power of attorney. In addition, an authorized representative should be appointed who is authorized to check the authorized representative.
Anyone who is deliberate in the will can inherit. Minors may also inherit, but then a legal representative steps in. These are usually the parents. The statutory inheritance law applies without a will.
A probate will secure the inheritance at its due discretion. Objects can be sealed and securities can be deposited. The court appoints an estate administrator to protect the property and determine the heirs. The administrator is liable for intentional or negligent damage.
In this case, the statutory inheritance law applies. The law provides for five orders: 1. Direct descendants: spouses, registered communities, children, 2. The deceased’s parents, 3. Grandparents and their descendants, 4. Great-grandparents and their descendants, 5. Great-great-grandparents and their descendants. Every relative in a previous category excludes a successor. Example: If the children are still Life, the deceased’s parents go empty-handed.
His descendants take the place of the deceased. Example: A deceased person has two children, one of whom is no longer living. His or her children then take the place of the deceased child.
The inheritance is divided according to the degree of kinship. Example: If the man dies, his wife inherits 50 percent. The two children divide the remaining 50 percent between themselves. Brother and parents of the deceased go empty-handed. Special cases apply to a marriage contract with separation of property.
In many cases, the testator would like to deviate from the legal regulations. It is not necessary to agree with the heirs, the dispositions can be revoked at any time. An alternative is an inheritance contract that cannot be revoked. Such a contract can also be concluded between the testator and heir.
A signed will signed by handwriting does not require certification by the notary. The text must be written by hand, a dictation is not enough: the handwriting must be recognizable. The form must be preserved: The signature must usually appear under the last sentence and contain first and last names. The time and place must be specified, but do not invalidate the will if it is missing. Subsequent deletions or etchings are effective. Important: the last will should leave no doubt.
Every legitimate heir is responsible regardless of the content of the will compulsory portion of the estate. The family, children, grandchildren, parents and spouse are entitled. Distant relatives like siblings, uncles or nephews go empty-handed. The heirs are liable for the claims of the beneficiaries.
In some cases, crime, such as a one-year prison sentence or a threat to the descendants’ lives. A violation of the maintenance obligation can also lead to the loss of the compulsory portion.
Another hurdle for misuse is the exact definition of the date on which the power of attorney comes into force. The effectiveness of the notarized power of attorney depends on the fact that the proxy has a copy of the certificate.
The notary is instructed to only issue a copy to the proxy if his incapacity to act has been proven on the basis of a medical certificate.
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