Why is heritage so important to people

Inheriting: The most important facts before and after death

A survey by the German Forum for Inheritance Law e. V. in cooperation with TNS Infratest, according to only about 25.8 percent of Germans regulate their estate in a will or an inheritance contract. If a loved one dies and leaves no last will, the bereaved are often overwhelmed with the situation. Many questions such as “Who will take care of the estate until the inheritance has been clarified?” Or “Who will get how much of the estate?” Gnaw at the mind and often lead to disputes.

The legal succession: It depends on the closeness of the relatives

In inheritance law, everything revolves around the will. If it has been legally drafted, it is able - apart from the compulsory portion - to evade the legal succession. But even if there is no last will and legal succession occurs, it is by no means always clear at first glance who is entitled to inheritance.

Legal succession is the standard rule that applies in most cases where there is no legally valid will. For this purpose, the possible heirs are divided into so-called orders according to which they can inherit. This system starts with very close relatives and moves to more distant relatives. Basically, a distinction is made between the following orders:

1st order

Direct descendants of the testator (children, grandchildren, great-grandchildren; adopted and illegitimate children)

2nd orderParents of the testator and their descendants (parents, brothers / sisters, nieces / nephews)
3rd orderGrandparents of the testator and their descendants
4th orderGreat-grandparents of the testator and their descendants

 

If a person dies, one first checks with regard to the legal succession whether he or she had children. If this is the case, the children inherit in equal parts. If a child has already died, the grandchildren take their place. However, if the deceased had no children of their own, the second order occurs. First of all, the parents inherit. If these are no longer alive, the brothers and sisters are entitled to inherit. This system will continue until a legitimate heir is found. All subordinate orders then go away empty-handed.

Persons by marriage, stepchildren and foster children are not entitled to inheritance because there was no family relationship between them and the deceased. If no legal inheritance can be determined and there is no will, the inheritance goes to the federal state in which the deceased was domiciled or habitually resident. If even this cannot be determined, the German Confederation will inherit the entire estate.

The spouse's inheritance law: special position for the spouse

The spouse occupies a special position within the legal succession because there was no family relationship between him and the testator. In order for the spouse to be entitled to inheritance, a marriage must have existed at the time of death for which a divorce has not yet been filed.

Regardless of the remaining inheritance, the spouse always receives the marital household effects and any wedding gifts. If there are heirs of the first order, the spouse must be satisfied with 25 percent of the estate. The rest is distributed among the heirs. If there are only heirs of the second order, the part of the surviving spouse increases to 50 percent. In all other cases, the spouse inherits in full.

This regulation applies to the status of community of property. If the separation of property or a community of gains has been agreed between the spouses, there are different regulations that provide for a higher inheritance.

The compulsory portion: guarantee for certain heirs

Even if there is a will in which the testator leaves his entire property to a certain person, he cannot completely undermine the legal succession. There is a certain group of people who are entitled to a compulsory portion if they are entitled to inheritance. This includes biological and adopted children as well as the spouse or registered partner. Other descendants, such as grandchildren, can only claim a compulsory portion in special cases.

The amount of the compulsory portion is determined by the amount that the inheritance would have had if a person had inherited regularly. Specifically, she can claim half of this fictitious inheritance share as a compulsory share.

If a widowed testator leaves three children, they could claim the inheritance in three equal parts. However, if the latter bequeaths his entire property to a child in his will, the two remaining children can demand their compulsory portion equal to half of their actual inheritance portion. In this example, the compulsory portion would each amount to one sixth of the property, so that the “sole heir” employed would still receive two thirds of the property.

In certain special cases, however, the entitlement to a compulsory portion may not apply. This applies in particular if the heir sought the death of the testator himself, his spouse, descendants or other persons close to him or committed another crime against them. Even if an heir has not fulfilled his or her maintenance obligation towards the testator, withdrawal of the right to compulsory portion is possible.

The opening of the will: jurisdiction of the probate court

The probate court is responsible for fulfilling the last will of the deceased. Anyone who is in possession of a will or contract of inheritance after the death of the testator or who finds such a document must immediately submit it to the competent probate court. The district court in whose district the testator lived is always responsible.

Even before the proceedings are opened, the judges try to find out who is eligible as the legal heir. Finally, an inheritance negotiation takes place, which serves to open a will. Anyone affected by the inheritance, such as the executor or the heirs, can be invited to this hearing. The result of the estate negotiation is later communicated to the heirs in writing by means of a will opening certificate.

If the testator has named an executor in his will, this will be appointed by the probate court. This option is often used if disputes about the inheritance are to be feared, if the estate is very high, if there are several heirs or if there are complicated division arrangements with conditions.

The executor has the task of fulfilling the requirements stipulated in the will according to the wording of the testator. This also means that only he may take possession of the estate and manage it until the inheritance relationships have been finally clarified.

If no executor has been appointed, the heirs can request the probate court to issue a certificate of inheritance. This enables them to take possession of the estate.

Succession: When There Is Debt

Every heir has the opportunity to refuse the inheritance within six weeks of becoming aware of the inheritance. Often the indebtedness of the testator is the cause, but in some cases there are also personal reasons for this decision, for example a falling out with the testator during his lifetime.

Succession cannot be restricted to individual parts of the inheritance. Here the principle applies: “All or not at all.” If a legitimate heir rejects his share, the succession is considered as if he had not been alive at the time of death of the testator.

An example: The testator leaves two biological children who each also have two children. If both children of the testator would accept the inheritance, they would each receive half of the property. If, on the other hand, one of them rejects the inheritance, the other receives his half of the inheritance. The second half is distributed among the children of the deciding inheritance.

The disinheritance: not so easy at all

Apart from the special cases already mentioned in the case of the compulsory portion, for example if an heir has tried to kill the testator, disinheritance is legally not that easy to initiate. In principle, the testator can freely choose his heirs, of course also outside the family. However, he cannot undo the entitlement to a compulsory portion of individual heirs without good reason. If a person is excluded from inheritance, the legal succession is applied as if it did not even exist.

In order to minimize the risk of avoiding a will, no reasons for the disinheritance should be given in the will. If the disinherited person can gather evidence that there was an error on the part of the testator, he can contest the will and insist on his share of the inheritance.

Get advice from the experts

Since the subjects of inheritance and inheritance law are naturally very complex, it is advisable to consult a notary or lawyer if you are unsure. The information presented here is provided without guarantee and without any claim to completeness.

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