Upon the death of a person (devolution of an inheritance), his property (inheritance) as a whole passes to one or more other persons (heirs) under section 1922 subsection 1 of the German Civil Code (BGB).
Objectively speaking, inheritance law comprises those statutory provisions which regulate the fate of a natural person’s private property after his or her death. An essential part of the inheritance provisions of the German Civil Code concerns legal transactions with which a testator can regulate the fate of his property after death, i.e. by means of dispositions mortis causa - will and contract of inheritance - can structure the transfer of his property to heirs and legatees in deviation from statutory succession provisions.
More subjectively, inheritance law regulates the right of a person to the property of the testator after his death, in particular as his or her sole or joint heir, as a person entitled to a compulsory share or legatee, and also the right not to be an heir, contrary to statutory succession regulations.
German inheritance law is characterised above all by the principle of universal succession to the heirs on the one hand and, on the other, to the principle of testamentary freedom.
Whoever is heir by law or by testamentary disposition acquires the property of the testator upon his or her death with no further ado. The transfer of rights takes place automatically and also includes the testator’s liabilities.
By will or contract of inheritance, the testator can, however, regulate the succession privately and autonomously in a way that deviates from the legal succession. Authorised succession takes precedence over legal succession. Testamentary freedom makes it possible to effect a distribution of property appropriate to the individual case by means of a privately and autonomously regulated succession. Barriers to testamentary freedom are only put in place by the right to a compulsory share and the prohibition against immoral dispositions.
In order to ensure testamentary freedom, the statutory provisions contain a number of instruments that make it possible, even in complex situations, to design the succession to fit the needs of each individual case. One of the challenges in advising on inheritance law is to understand the individual needs of the testator and the heirs, making targeted and appropriate use of them and combining the instruments of inheritance law in a meaningful way. This includes determining inheritance quotas, ordering prior and subsequent successions, as well as legacies subject to certain conditions and executing wills. A further focus is advising heirs and other persons entitled to the estate as part of the inheritance, such as questions concerning acceptance or disclaimer of the inheritance, as well as the settlement and realisation of the estate.
Formally, it is often advisable to draft testamentary dispositions with a notary. In some cases, this is required by law. The same applies to matters after the devolution of an inheritance, in particular in cases when the inheritance is disclaimed, as part of inheritance certification proceedings, or in the structuring of inheritance disputes.
The notaries at LEONHARDT RATTUNDE are intimately familiar with the issues concerning notarial arrangements in inheritance law and are in a position to offer advice that is appropriate both to the individual interests of the testator and to those of the heirs.
We advise on inheritance law and draft documents always with the individual needs of the testator and heirs in mind.