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Succession law Augsburg, compulsory share and community of heirs

An inheritance brings legal questions with tight deadlines: disclaiming the inheritance, the compulsory share, interpreting a will, dividing the estate. Without a will, the Civil Code distributes the estate under statutory succession, and the share depends on the spouses' matrimonial property regime. We advise heirs, the disinherited and testators in Augsburg.

Only 6 weeks: the disclaimer of an inheritance must be declared to the probate court within six weeks of learning of the death.

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Statutory succession and shares of the estate without a will

Heirs of the first order are the testator’s descendants alone (§ 1924(1) BGB). The surviving spouse belongs to no order. Alongside relatives of the first order, the spouse inherits a quarter in their own right (§ 1931(1) BGB).

Where the spouses lived under the statutory matrimonial property regime of community of accrued gains, this share increases by a further quarter across the board (§ 1371(1) BGB). The spouse then receives half, and the children share the other half equally.

A will displaces this distribution. In Augsburg, we draft your testamentary disposition so that it reflects your wishes.

Calculating and enforcing the compulsory share

Anyone excluded from succession by a will retains the compulsory share (§ 2303(1) BGB). It amounts to half the value of the statutory share and is a monetary claim against the heirs. It does not grant a share of the estate in kind.

Lifetime gifts made by the testator increase the claim through the supplementary compulsory share claim. A gift made in the last year before death counts in full; after that, the amount taken into account falls by a tenth each year, and after ten years it is disregarded (§ 2325(3) BGB). We enforce compulsory share and supplementary claims and defend heirs against excessive demands.

Disclaiming an inheritance and dissolving a community of heirs

An over-indebted estate does not force you to disclaim it. The heir can limit their liability to the estate as soon as estate administration is ordered or insolvency proceedings over the estate are opened (§ 1975 BGB). Which route works depends on what the estate actually holds. We clarify this in Augsburg before the disclaimer period runs out.

Disclaimer period under § 1944 BGB

The disclaimer must be declared to the probate court within six weeks (§ 1944(1) BGB). The period runs from learning of the inheritance and the reason for being called as heir (§ 1944(2) BGB). Six months apply where the testator’s last residence was abroad only, or where the heir is abroad when the period begins (§ 1944(3) BGB).

Two forms are permitted: a declaration recorded by the probate court, or a declaration in publicly certified form through a notary (§ 1945(1) BGB). A partial disclaimer is invalid (§ 1950 BGB).

Once the period expires, the inheritance, debts included, counts as accepted (§ 1943 BGB). What remains is rescission, which requires a mistake about material characteristics of the estate, for example undisclosed over-indebtedness (§ 119(2), § 1954 BGB).

Community of heirs, division and the action for division

Where the testator leaves several heirs, the estate becomes the co-heirs’ joint property (§ 2032(1) BGB). Any co-heir can demand division of the estate at any time (§ 2042(1) BGB).

If no agreement is reached, the route runs through an action for division, and for real property through forced auction and division of the proceeds (§ 753(1) BGB). In Augsburg, we negotiate division agreements.

Inheritance tax and lifetime planning

Planning during your lifetime settles two things: the tax burden on your heirs, and who represents you if you become unable to act. The two are connected. In Augsburg, we align allowances, gifts and precautionary documents with each other.

Inheritance tax: allowances under § 16 ErbStG

The tax-free allowances are graded by degree of relationship: €500,000 for spouses and civil partners, €400,000 for children, €200,000 for grandchildren (§ 16(1) ErbStG).

Acquisitions from the same person within ten years are added together (§ 14(1) ErbStG). The allowance is then available again. The tax rate ranges from 7% to 50%, depending on the tax class and the value of the acquisition (§ 19(1) ErbStG).

Precautionary power of attorney and living will

No court-appointed guardian is needed where an authorised representative can handle matters just as well (§ 1814(3) BGB). The law does not generally prescribe a form for the precautionary power of attorney. For entries in the land register, however, § 29(1) GBO requires a public or publicly certified document.

A living will requires written form (§ 1827(1) BGB). In it, you set out whether you consent to particular examinations, treatments or medical procedures should you become unable to give consent. We draft both documents and align them with your succession planning.

Further information

These topics may also be of interest:

This information does not constitute legal advice in an individual case.

Succession law Augsburg, compulsory share and community of heirs

FAQ

Frequently asked questions: Other practice areas

How long do I have to disclaim an inheritance?
The disclaimer period is six weeks from learning of the death and of your position as heir (§ 1944 BGB). Where succession is by will, the period begins when the will is opened. The declaration must be made in publicly certified form before the probate court or a notary. If you miss the deadline, the inheritance counts as accepted.
How large is my compulsory share?
The compulsory share is half the statutory share. Example: as the child of a testator who was married with two children (community of accrued gains), your statutory share is 1/4, so your compulsory share is 1/8 of the estate's value. On an estate of €400,000, that would be €50,000.
Do I need a certificate of inheritance?
A certificate of inheritance (Erbschein) is required where there is no notarial will and you must act as heir towards banks, the land registry or public authorities. With a notarial will and the probate court's record of opening it, no certificate is needed. It is applied for at the probate court at Augsburg Local Court.
Can I still claim the compulsory share if the testator gave everything away?
Yes. Gifts made by the testator in the last ten years before death increase the compulsory share through the supplementary claim (§ 2325 BGB). The gift is taken into account on a sliding scale: 100% in the first year, then 10% less each following year. For gifts to a spouse, the period only starts to run on divorce or death.
What happens if the community of heirs cannot agree?
Any co-heir can demand division of the estate. If no agreement is reached, an action for division remains. With real property, the court can order a partition sale, often with substantial losses in value. We therefore recommend negotiating a consensual division agreement early on.
How can I minimise inheritance tax?
Through forward-looking gift planning, you can use the tax-free allowances afresh every ten years. Special valuation rules and reliefs apply to real property (the family home). A prenuptial agreement can complement your succession arrangements. We advise you in Augsburg on tax-efficient estate planning.

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