inheritance

Inheritance law governs the assets of the surviving dependents

If there is no declaration of intent in the form of an effective will, the legal succession takes effect. Inheritance law states that in the case of a final will of the deceased, the legal succession can not be applied. If the testator favors other persons outside the family in his testamentary disposition, the legal heirs can only assert their claim to the compulsory portion.

The inheritance law closes this spouse inheritance, the family inheritance and the relatives inheritance so that in the death of the testator the Assets divided due to the degree of relationship becomes. By law, the spouse is not related to the testator and must therefore be considered separately. In the first place direct relatives are entitled to inherit, which includes children and grandchildren. Only then are distant relatives such as nieces and nephews taken into account in the inheritance. In principle, close relatives exclude more distant relatives from inheritance.

The legal succession of married testators

If this is not the case, the surviving spouse, unless heirs of the first and second order are present, the entire fortune.

Otherwise, the inheritance share is reduced for co-heirs of the first or second order. However, it still amounts to at least 25 or 50 percent of the assets. However, the share of inheritances increases by 25 percent in the case of a marriage in the form of a profit-sharing partnership. For this reason, in most inheritance cases, spouses and children each receive 50 per cent of the assets.

The standard work on the subject of wills and inheritance The guide shows how to settle everything well and avoids strife. Many examples, checklists and sample testaments help to realize your own ideas.

Circumvention of the legal succession

In addition to the legal succession, a testator basically has the option of providing a different distribution of his or her inheritance during the lifetime. There are two options for this. These are testament as well as the Erbvertrag.

In the case of a contract of inheritance, the deceased and the heirs as contracting parties agree during their lifetime on the distribution of the inheritance. In contrast, the will constitutes a unilateral declaration of will by the testator. It should be noted, however, that a will does not always apply fully. So it is possible by means of a will that the inheritance is distributed differently, one however, complete disinheritance is usually ruled out. The reason for this lies in the fact that every successor entitled to succession usually, even in the case of disinheritance, a claim to half his inheritance, this is the so-called compulsory portion, Has.

Thus, the legal succession is difficult to completely avoid. However, it is possible to reduce the amount of the inheritance by donating during your lifetime.

The legal succession of married testators

The legal succession provides for the surviving spouse in the rule before an inheritance claim. Exceptions apply only in a few isolated cases, for example if a divorce had already been filed at the time of the death of the testator. If this is not the case, the surviving spouse, insofar as no heirs of the first and second order are present, inherits the entire property. Otherwise, the inheritance share is reduced for co-heirs of the first or second order. However, it still amounts to at least 25 or 50 percent of the assets. However, the share of inheritances increases by 25 percent in the case of a marriage in the form of a profit-sharing partnership. For this reason, in most inheritance cases, spouses and children each receive 50 per cent of the assets.

Inheritance determines the heredity

Inheritance determines exactly who is able to inherit from relatives. The decisive factor is that only the one who can take his inheritance, who also lives at the time of the succession, ie at the death of the testator. Children who were conceived during the inheritance are not entitled to inherit. Special criteria are also applied to surrogacy. Thus, children of surrogate mothers are classified by inheritance only as related to the surrogate mother and a relationship with the contracting parents is thus excluded.

Claims of a legal heir to his compulsory portion may also be waived if the primarily entitled to inheritance rejects his inheritance or he is classified by the law of inheritance as unworthy of inheritance. Then the subordinate heritage is taken into account.

The withdrawal of the statutory compulsory portion, however, is only possible if the legally entitled to inherit a serious offense perpetrated on the deceased. Embezzlement of money is sufficient as a reason for that Withdrawal of the compulsory portion not from.

Inheritance law governs claims of illegitimate children

Before 2009, German inheritance law was based on the principle that children who were born out of wedlock after 1 July 1949 are also entitled to statutory succession, as are legitimate children. Children from a non-marital relationship who were born before this deadline only had a claim to the maternal estate. The only exception was that an inheritance claim in the death of the father was given only if early one Equality Agreement was determined.

After numerous lawsuits by non-marital children affected on 28 May 2009, the European Court of Human Rights dealt with inheritance law. It has been established that the treatment of all illegitimate children born before 1 July 1949 violates the European Convention on Human Rights. Based on this finding, the Federal Government drafted a bill, which was a Equal treatment of all legitimate and non-marital children as legal heirs so that all children can inherit their deceased father equally.

Obligation to declare inheritance

An inheritance must be reported in writing to the responsible tax office within a period of three months. Certifications made by courts, authorities or notaries are also reported to the responsible tax office. The same applies to credit institutions that have to report account and custody accounts of deceased persons and the existence of lockers to the tax authorities.

In principle, however, the advice of a tax adviser or a specialized lawyer should be obtained in advance to develop a strategy that is tailored to the personal situation.

More information about the topic

Taxable basis for inheritance tax

In the past, inheritance tax has been a problem area for the different valuation of different types of assets. While valuing the legacy of money or securities is straightforward, the problem of identifying real estate, real estate, and assets becomes apparent. Since 1 January 2009, the inheritance tax reform has been based on the market value (so-called “common value”). For real estate, the regulations are used to determine the market value. For land ownership of undeveloped land, this is the land value. For developed land, different procedures are applied depending on the type of use. The comparative value method determines the values of one- and two-family houses as well as residential property. The prices of comparable properties are used for the valuation. In the case of rental residential and commercial properties, the capitalized earnings method is applied. In addition to the land value, a building yield value is calculated, which is determined on the basis of the local comparative rents. The tangible asset method is applied to other developed land and to properties if there are no comparable values or if no comparable comparable rent can be determined.

Notes on tax bases
In the case of agricultural and forestry assets, the market value of inheritance tax is also used as the taxable amount. The value of shares in corporations that are not listed on a stock exchange or for shareholdings in partnerships is determined using a normal market practice. Usually you orient yourself according to the earnings prospects of the company. Business assets and shares in corporations are largely not used as taxable amount. The condition is that the deceased or donor was more than 25 percent directly involved in the company. In principle, all debts of the testator are to be deducted from the assets and thus reduce the inheritance tax. Upon request, a deferment of the estate tax may be agreed in certain cases.

Erbausschlagung

The legacy is one of the few legal transactions that can occur completely unexpectedly and without their own participation. Heirs are either prescribed by the law of succession or can be considered by a will without knowing it. Basically, there are three ways to respond to an inheritance: inheritance, founding, inheritance rejection with compulsory portion claim.

It makes sense to turn down a legacy if the testator was deeply in debt and had no positive assets. If such an inheritance were accepted, then the debts were transferred to the heirs, who would then have to be held liable with their private assets. Such an inheritance is unattractive and merely a burden. However, it is not always clear how the deceased’s economic situation is shaping up. If the legal or testamentary heir is initially a three-month defense of provisional inheritance, he has a chance to gain a limited overview of the financial circumstances before he has to explain the bastard strike.

Alternatives to the attack
It is not always clear whether a legacy is over-indebted. In reality, it is often the case that certain assets face, on the one hand, financial obligations and debts on the other. A premature knock-down in such a case would in some circumstances lead to the loss of predominant assets. In order to avoid this, the legislature provides in the Civil Code various ways to protect heirs from the debts of the testator. In addition to the three-month defense, this includes the public procurement procedure, the establishment of an inventory as well as the estate administration or the estate insolvency proceedings. A knock-on strike may not make sense if an asset is debited but on a permanent basis is likely to generate income. The solicitation is another way for the heir to get an overview of possible liabilities of the testator within six months. A limitation of liability can reach heirs through the Nachlassinsolvenzverfahren as well as by an estate administration, if the financial situation is confusing.

Form, deadline and contestation of the construction strike
The decision on what should be done with the inheritance must be made within a certain period of time and requires a form prescribed by the Civil Code. Anyone who fails to declare an extension within six weeks of receiving the inheritance automatically inherits the inheritance. The declaration of rejection of the heritage must be made in writing and in a publicly certified form. In addition, it is possible to record the rejection with the competent probate court and have it certified. By default, the inheritance falls to the next heir in the succession order. These may, under certain circumstances, be minor children who can not make a declaration themselves. In this case, the declaration of refusal of the inheritance is attributed to the legal representatives, usually both parents. If after the transfer of the inheritance a hitherto unknown asset situation become known, on the basis of which it would not have come to this explanation, the propagation can be challenged within six weeks with the probate court.

community of heirs

Creation and dissolution of a community of heirs
A community of heirs refers to a plurality of individuals who collectively inherit an estate, thereby taking over the rights and obligations of inheritance. It is possible that the proportion of the estate varies between the individual co-heirs. The legal basis for this statutory hereditary division and for the dissolution of a community of heirs can be found in the Civil Code. Of particular importance are the following forms of dissolution: the settlement of inheritance, the transfer of inheritance and the stripping. As a rule, most co-heirs decide, at least in the long term, for a heirs’ community dissolution.

The heirs community as a total hound community
As soon as an estate has to be divided among several heirs, ie a so-called co-inheritance arises, these heirs form a total hound community. This means that each individual co-heir receives a share of the estate but is not entitled to a particular heirloom. In order to actually distribute these hereditary goods, a dissolution of the community of heirs is necessary. Until the time of distribution, all joint heirs have the right to use the inheritance as far as possible. However, as common use is often not possible, it is usually necessary to dissolve the community. However, in order to avoid problems when dividing the estate, it may make sense for the testator to regulate the division already during lifetimes and to decide which fellow heir should receive what. In this context, however, it should be noted that the statutory provisions on inheritances must be taken into account and that a joint heir, for example, who receives the house, may have to pay other parts of the community of heirs.

Special features in the dissolution of a community of heirs
Although a dissolution of the community of heirs is not required by law, most co-heirs aim for it. Due to different ideas and lack of liquidity, a consensual resolution in practice is not always possible. For this reason, each co-heir basically has the opportunity to arrange for his resignation from the community of heirs or their dissolution. Resignation from the community is possible in addition to the voluntary waiver of the so-called sale, in which a single co-heir sells his inheritance to a third party. It should be noted, however, that the remaining co-heirs have a right of first refusal, which applies for a period of two months. However, as it is not always possible to sell a single inheritance share, each co-heir is also free to arrange an auction if the necessary conditions are met. However, due to the complexity of this matter, it is advisable to seek the advice of a lawyer.

Apply for a certificate of inheritance

How to apply for a certificate of inheritance?
If a relative dies, the survivors have many precautions to take. Examples include the organization of the funeral, the termination of contracts and the distribution of the estate. However, for this to be possible and for the costs to be paid, it is imperative that the survivors have access to the deceased’s assets. For this reason, the survivors should apply for a certificate of inheritance. With a certificate of inheritance, the heirs can prove their claim against banks, authorities, land registry offices, etc., and thereby, for example, access the assets of the testator. Without a certificate of inheritance, the assets are usually not released or only to a limited extent.

Who can apply for a certificate of inheritance??
A certificate of inheritance is an official document governing the distribution of the estate of a testator. Since different persons may be interested in the distribution of the estate, various groups of persons are entitled to apply, for example the legal heirs, the heirs determined by will, the legal successors of the legal or willful heirs, the executors, the estate administrators, the testator’s creditors or the Creditors of the heirs. Each person listed here or a lawyer appointed by the person can apply for a certificate of inheritance. It should be noted, however, that if you want to apply for a certificate of inheritance, you will need to submit several documents. In addition to the death certificate of the deceased, e.g. also proof of the marital status of the deceased and kinship, for example in the form of marriage and birth certificates or the will required.

Cost of a certificate of inheritance
On the basis of the submitted documents and evidence, the competent probate court may issue a certificate of inheritance, taking into account the legal succession as well as any existing will or contract of inheritance. The issuer of this certificate will incur costs for the person who applied for the certificate of inheritance. The amount of these costs depends on the amount of the estate and can therefore vary from case to case. In addition, the costs are to be borne only once in the case of several heirs. The reason for this lies in the fact that in most cases a common certificate of inheritance is created in such a case. This then contains the information about the amount of the inheritance, the individual heirs and the inheritance. Alternatively, it is also possible with several heirs that each individual heir receives a divisional certificate or that different divisional coupons are summarized by a so-called group certificate.

Erbvertrag

With a contract of inheritance, everyone can decide at an early stage and on their own authority who in the event of death is one of the beneficiaries. Not only relatives can be designated as heirs, but also any other person. In addition, legacies defined by the legislature can be changed and orders for wills and bequests can be ordered. This special contract includes an order in which at least two partners must be involved. The legal validity is guaranteed by a notarial certification. One of the peculiarities of this inheritance law is that even unmarried persons can sign such a contract.

Compared to the classical will, lower notary fees are due for the certification, since no official custody is required at a probate court. Changes to dispositions in a contract of inheritance can only be carried out with the consent of both contracting parties. If a contractual partner dies, changes are no longer permitted. This contract variant is much more flexible compared to a will and offers the testator the opportunity to align the succession to his individual wishes.

If the deceased and the beneficiary jointly decide on a termination agreement, the binding effect in the contract of inheritance will no longer apply. Thus, a testator can be released from the contractual conditions, if the contracting party does not fulfill his agreed obligations. This can be the case if, for example, care services are not provided sufficiently or not at all. If the testator wishes to affect his contract partner by donating to a third party during his lifetime, the latter has the right to reclaim the donation in the event of inheritance, as it is based on an unjustified enrichment, which is also defined in the Civil Code. However, the claim is subject to a three-year limitation period beginning with the succession.

Only in special cases, the testator decides to this form of legacy, for example, to secure individual persons early, which are not considered due to the legal succession. In particular, if advance payments are made such as a care, it can be of great importance to hedge the claim of a contract early in the form of consideration for an advance payment.

Inheritance contract requires business ability
Unlike the conventional testament, the testator must have his full business ability can prove. In addition to a notarial certification, the personal presence of the two contractual partners is also included. If such a contract governs the estate, the testator must know that he is committed to the agreed conditions, as a unilateral right of withdrawal in this variant is excluded in principle. Only in exceptional cases can the addendum be included in a contract of inheritance that a right of withdrawal or a reservation of change is possible.

Inheritance contract and company succession
With a contract of inheritance, a company succession can be secured at an early stage and on a reciprocal basis. Gradually, the testator can already assign during his lifetime a business to the successor appointed by him, the complete transfer takes place only at the death of the testator. The special binding effect of this variant on the one hand provides security, but also leads to a dependency ratio, since both parties have to agree to changes.

Generallvollmacht

A general power of attorney is understood to be a document that is not subject to any procedural requirements under which certain rights of a person are transferred to another person (in special cases, this may be a legal person). Only rarely is notarization necessary. In special cases, these can also be legal persons and not necessarily natural persons.

The general authority distinguishes from the limited power of attorney by the fact that with it all the legal powers of one person are transferred to another person. The respective person who receives the general power of attorney is thus authorized to sign and may sign and enter into contracts on behalf of another person, but may also decide on other areas.

As a rule, the power of attorney is restricted to certain areas of application, so that, for example, the general representative can take over the deputies for all asset-related contracts. However, these are only representatives. The power of attorney rights are thus not automatically withdrawn. The power of attorney merely extends the room for maneuver, since for certain acts the signature or the presence of a certain person is no longer necessary, but can be represented.

General authority in the notary public
The general power of attorney may also be issued to notaries, who are thus authorized to perform certain acts for their clients. This is particularly important, for example, in the transfer of land. The transfer of ownership of land is usually in the train-to-train business. The notary acts as a middleman between the buyer and the seller. In order to facilitate the processing, the notary is given a power of attorney. On the one hand, the latter authorizes him to make the corresponding changes in ownership in the land register, and on the other hand also to transfer the purchase price for the property from the buyer to the seller as soon as the change in ownership has taken place. In some cases, such as in probate proceedings, generous rights to property rights are also transferred to the notary through a power of attorney. This allows him to handle the probation procedure and to divide the estate into the rightful beneficiaries.

The general power of attorney in the enterprise
The general power of attorney is especially important in everyday business life. Usually, the managing director transfers the power of attorney in the form of a general proxy to an authorized officer. The authorized representative is thus authorized to represent the managing director in all matters relating to the company. His signature is as binding and legally valid as that of the managing director himself. Due to the possible legal scope of a general power of attorney, it is generally entrusted to long-serving employees who have the necessary confidence in the company and have already demonstrated their sense of responsibility towards the company has been.

In addition, the power of attorney is in many cases also restricted in order to allow the delegation of delegates to apply only to certain parts of the entrepreneurial activity. The power of attorney is usually issued when the managing director himself is absent for a longer period of time and can not take care of the business affairs himself, or if he wants to withdraw himself from everyday business life.

compulsory portion

The mandatory part indicates the share of the inheritance which the heirs are entitled to in any case and which is guaranteed by the state. This regulation thus restricts the freedom of testimony according to which persons can divide the distribution of their inheritance in the will. Nevertheless, the compulsory portion only specifies a minimum share that must be paid to the heirs.

The mandatory part can be paid to different heirs. In each case, the direct descendants of the deceased, but also spouses or civil partners, are eligible to participate. In addition, the parents or more distant relatives can take over the inheritance. This happens especially when the close relatives who can be used as potential heirs have also already died and therefore can not inherit the inheritance themselves.

In addition, the amount of the inheritance is influenced by donations and other grants during the lifetime. In each case, the heirs have a three-year entitlement period. If heirs who may not have received their share do not report within this time limit, the claim becomes statute-barred.

Compulsory compulsory portion
The mandatory part is enforceable in Germany. Even if heirs were excluded by a testament because of a broken relationship with the deceased, and the deceased did not want them to be able to inherit it, they are entitled to it. The inheritance can be brought before the court and must be shared among the heirs according to the valid key. Thus, it can not come to favoritism of some heirs, provided that other heirs are thereby reduced to their compulsory portion.

Withdrawal of the compulsory portion
Only in rare cases can the right to the compulsory portion be withdrawn. For example, when the potential heirs of a crime have been found guilty or physically violent against the testator. Even if it can be shown that an heir wishes to bring about the death of the testator or of a person close to him, the inheritance can be withdrawn. In the will, the compulsory portion can be denied to individual heirs, even if the testator believes that the inheritance does not get into good hands. This is the case, for example, when the potential heir is heavily in debt and thus the inheritance would be further jeopardized.

Write a will

Legal regulations
If the distribution of wealth for the death has not been settled and the testator has not written a will, the legal succession is valid. However, it should be noted that the heirs are entitled to a so-called compulsory part, even in the presence of a will. Anyone who agrees with the distribution of his assets according to the legal succession, usually requires no will. Who writes a will, can to a large extent determine for themselves, who for example money or

Anyone wishing to write a will can do so at any time; it can be revoked and changed during their lifetime. The will comes into force after death and governs how the deceased’s assets are distributed. In Germany, the will is also referred to as the last will and regulated by the Paragraph 1937 of the Civil Code. If there is no will, the legal succession occurs. The legal succession often does not correspond to the personal ideas for the distribution of wealth after death. to inherit a property.

Formal requirements
Who wants to write a will, has two different forms to choose from: the public and the private will. A private will is a handwritten statement. The handwritten will must be written and signed by the deceased himself. It is not sufficient to write and sign the will on a PC or typewriter – the entire declaration must be in handwritten form.

A public will is written with the help of a notary. According to § 2232 BGB the testator hands over a will to a notary. The testator can either write or write the will. The public testament can be handed over to the notary open or closed. Persons who are no longer able to write their own will have to hand over the minutes to a notary. So-called Nottestamente are hardly of any importance today.

alternatives
As an alternative to a will, it is also possible to write a contract of inheritance for the distribution of wealth after death. With a contract of inheritance, the distribution of inheritance is binding, which is not the case with a will. Often the hereditary contract is combined with a marriage contract. The two spouses mostly sit here as sole heirs. This regulation deviates from the legal succession with the formation of a community of heirs. Inheritance contracts are always attached to the notary and require the presence of all contractors.

Testamentsvollstreckung

In an execution of the will, the estate is settled, whereby the last will of the testator, which is documented in a will, is implemented neutrally. In most cases, willful executors are not themselves the beneficiaries of a legacy, but are to divide the estate in the interests of the deceased among the heirs. As a trustee, an executor guarantees that all entitled persons benefit from their legal claim to an inheritance. Thus, the execution of the will can also refer to a large group of people, which includes inherited offspring as well as heirs. Family members are just as much part of it as are entitled to participate, business partners, employees as well as tenants of a property that is in the estate of the deceased.

In the death of the testator, the executor often also mediates between the beneficiaries to ensure a smooth flow of the execution of a will.

Implementation of the Last Will
Ideally, an executor should not come from the family of the testator to ensure the required objectivity. A professional executor, who not only has a legal education but is also an expert in the field of inheritance law, ensures a correct estate execution. In addition, professional experts are required by law to be responsible for any pecuniary losses incurred through special insurance. Ideally, when drafting the Last Will, a person should be designated for the execution of the will. If, in the death of the testator, no deceased person is present, the competent probate court will appoint an executor who, however, does not necessarily have to comply with the wishes of the heirs.

Legal framework
There are special legal conditions to be observed, which are defined in the Civil Code. The so-called processing enforcement includes setting the individual tasks that an executor should fulfill. Oriented on the last will of the deceased, the executor must implement this and other stated declarations of will. Linked to this is also the legal action to sell the estate, which also includes property, in the interest of the testator.

The structure is different Nacherbenvollstreckung. In this form of willful execution, the only task here is to assert all the rights of a heir-heir to a prior heir. In this case, the sale of Nachlassteilen is not fully possible. If the deceased has ordered a probate and successor inheritance, the executor of the will has to take care that a forerunner does not sell assets.

Vorsorgevollmacht

Many situations can lead to a person suddenly being unable to take care of their personal affairs. Banking, governmental affairs, insurance matters and other decisions that a person can only make in person may not be possible. The causes of such an ability to act are usually serious injuries due to accidents, sudden illnesses or other emergencies. The German legal system provides for various possibilities for personal representation, for example the supervision order, the power of attorney or the general authorization.

While a care decision by judicial decision takes place when the personal incapacitation has occurred, decides with a power of attorney the person concerned at an early stage even to whom she wants to give her in the event of an emergency situation to her unrestricted confidence. The authorization unfolds its effectiveness only in an emergency situation. The general power of attorney, on the other hand, applies with the moment of the authorization and not only after the occurrence of an emergency. Anyone granting a general power of attorney can therefore be represented at any time in all personal matters. With a living will, the precautionary measure is also not to be confused. The power of attorney only regulates the medical treatment in the event that the possessor himself is no longer able to make decisions or to express such decisions.

Form and legal character of the precautionary power
For many people, it is important not to be represented by a court-appointed supervisor in the case of their own decision and incapacitation. Care can be avoided if a person with a precautionary power is authorized at an early stage to take over the representation in personal matters. From a legal point of view, this authorization is a declaration of intent on the legal representation by another person. Basically, the authorized person can make all decisions in the sense of the principal. There are a few exceptions that also apply to childcare law. For example, the agent can not decide on measures for detention and accommodation or on dangerous medical treatment without first involving the guardianship court. For security purposes, several persons may be independently authorized, which may be particularly beneficial in financial matters. In principle, the precautionary power is form-free and can even be verbal. However, it would be difficult to prove. The granting of a notarised power of attorney, which can be submitted to banks, authorities, business partners, etc., and is recognized, makes sense. If the power of attorney also includes real estate transactions, a notarised deed is unavoidable. Since the notary also checks the viability of the principal, the deed is also safe from a possible doubt.

Pension proxy – advantages and disadvantages
The most important benefit of the precautionary power is its own decision as to which person (s) in the event of an emergency has full confidence in the representation. He also has the opportunity to limit the power of attorney to certain spheres of life. Very important is also the immediate effectiveness of the power of attorney after the emergence of the emergency situation. If only the court order of a supervisor is required, there is a long-term inability to act. The authorized person is under the power of attorney absolutely action free and does not have to account for individual decisions. If there is a suspicion that the authorized person is abusing the authorization, the Guardianship Court may also appoint a supervisor on request. As a disadvantage of the precautionary power is sometimes stated that the principal has no more control over the exercise of power of attorney when the emergency situation. However, he does not have these if the Guardianship Court appoints an official supervisor.

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