The children are entitled to part of the inheritance when a parent dies?
My parents have testified to each other as heirs. After that, both children should inherit in equal parts. My father has passed away. Am I entitled to at least one mandatory part early and how high would it be??
In principle, a compulsory portion is only considered if the beneficiary does not become heir or legatee, or not at least in the amount of his compulsory portion. The inheritance can be excluded by death, by expressly disinheriting the person entitled to the compulsory portion or by turning the entire estate over to other people.
In the so-called Berlin Testament – according to your information, this could be a special form of the joint will, the spouses act as sole heirs and at the same time determine that after the death of the long-living person, the mutual inheritance to a third party ( mostly the children) should fall as heirs. In principle, the long-living person has complete freedom of disposal over the inheritance. This creation of heirs in a joint will constitutes disinheritance for the descendant (s) after the death of the first-dying parent and thus a compulsory portion claim arises.
The descendants of the testator (children, grandchildren and great-grandchildren), the spouse and the testator’s parents are always entitled to a compulsory portion and, with effect from 01.08.2001, the surviving partner of a registered civil partnership. However, the testator’s siblings and further away relatives are not eligible.
In order to find out the amount of the compulsory portion, the number of legal heirs must first be determined. In your case, the wife and the two children would be legal heirs. Without the will, the wife is entitled to 1/2 of the father’s property and the children to 1/4. According to § 2303 BGB, however, only half of the statutory inheritance, i.e. H. You would be entitled to 1/8 of the father’s assets if you assert your compulsory portion.
Section 2303 reads:
Compulsory portion; Amount of the compulsory portion
(1) If a descendant of the testator is excluded from the succession due to death, he can request the heir to take the compulsory portion. The compulsory portion consists of half the value of the statutory portion of the inheritance.
(2) The parents and spouse of the testator are entitled to the same right if they are excluded from the succession due to their death. The provision of § 1371 remains unaffected.
Now of course it is important to know how big the father’s fortune was.
The calculation of the compulsory portion is always based on the value of the estate at the time of death. It is not important to give the testator’s value (§ 2311 BGB). The heir or heirs must provide information on the existence of the estate to the person entitled to the compulsory portion according to § 2314 BGB. The person entitled to the compulsory portion can request that a notary be consulted at the expense of the estate to compile the estate register.
You must always make a claim to a compulsory portion within 3 years after you know that you could possibly be entitled to a compulsory portion (that is, you have learned of your father’s death), otherwise it is time-barred.
Now there are also some special cases where things look different. The common testament of the parents could provide that the surviving spouse only becomes a so-called heir and the children then heirs. A subsequent heir is not excluded from the inheritance and can therefore not claim compulsory shares.
The heir already has some inheritance rights, so he must consent to dispositions necessary for the proper administration of the estate. If a property belongs to the estate, the heir must allow the heir to take out a loan for fundamental renovations and to charge the property for this purpose. The heir must ensure that the loan is used for a specific purpose.
The heirs also have control rights. For example, the heir is obliged to provide a list of the inheritance items on request. The state of the inheritance can also be determined. If money or securities are available, the heir may request that securities be deposited and money be invested in a safe manner. The heir can be released from the right of control by the testator. However, the obligation to have a list of the objects of the inheritance and a determination of the state of the inheritance remains.
If your parents’ will does not explicitly refer to pre-inheritance and post-inheritance, then it can be assumed that there is no such case in doubt.
However, there is another special feature. Many joint wills contain a clause according to which if the compulsory part is asserted after the death of one parent, the child can only assert the compulsory part even if the second parent dies. If there were such a thing, your sister / brother would practically become the sole heir after the death of the second parent and you would still get 1/4 of the assets then available. Such a clause would therefore mean that, if the compulsory portion is asserted now, you would end up with 1/8 of the father’s property and 1/4 of the mother’s property. Unfortunately, it is not possible to predict whether this will be more or less than half of the assets still available after the mother’s death. However, if your mother is more conservative and frugal on wealth, you probably end up with less.
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