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.
