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Properly preparing a will

June 2017

There are clear rules in Germany determining who will inherit. In the absence of a will or contract of inheritance, the rules of intestate succession apply. In that case, the first to inherit are the spouse or civil partner and one’s own children.

A lot of people put off thinking about what they want to happen with their estate after their death and in so doing forgo preparing a will or contract of inheritance. This means that the rules of intestate succession automatically apply. The first to inherit under these circumstances are the spouse or civil partner as well as the children and, as the case may be, the grandchildren if one’s children have already passed away. If there is no partner or children, the estate goes to one’s relatives in accordance with the degree of kinship, i.e. in the first instance to the testator’s parents or siblings.

GRP Rainer Rechtsanwälte notes that if the rules of intestate succession do not correspond with the testator’s wishes, he can draft a will or contract of inheritance and personally designate his heirs in due consideration of the relevant legal provisions, such as those pertaining to the compulsory portion. Notwithstanding this, there are other reasons why preparing a will might be a good idea, e.g. in order to make optimal use of tax allowances or prevent disputes from arising among the heirs.

Particularly in cases involving communities of heirs, it is not uncommon for things to come to disagreements. While the cash assets can be distributed easily pursuant to proportional rights to the inheritance, disputes frequently break out concerning what is to become of any property, jewellery or other valuables. One of the heirs might prefer to sell the property, whereas the other would rather make personal use of it. The testator is able to set out in a will which heir is to receive which part of the estate. To this end, it is necessary to include as detailed an itemized list as possible in the will.

Couples without a marriage certificate should also give thought to drafting a will in good time. If one of the partners dies, the other is not entitled to anything under the rules of intestate succession and will thus be left empty-handed. This has a particularly dramatic impact if, for instance, the couple acquired real estate together and a portion then goes to the legal heirs.

It is therefore advisable in many cases to concern oneself with preparing a will or contract of inheritance at an early stage. In doing so, the testamentary dispositions can be implemented in a way that most closely matches the wishes of the testator and is optimal from a tax perspective. Lawyers who are experienced in the field of succession law can advise accordingly.

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