Will and contract of inheritance

In a will or inheritance contract, you can determine who should receive your assets after your death and make further supplementary arrangements.

In an individual will, you alone make the dispositions. You can change, amend or revoke the will at any time.

An inheritance contract is concluded by several people; often by spouses, life partners or other participants in a permanent partnership. The significant difference to an individual will is that you can make binding dispositions in an inheritance contract. For example, partners can appoint each other as heirs and bind themselves to this. This commitment can then only be revoked jointly. However, each partner can reserve a free right of withdrawal in the contract. Furthermore, an inheritance contract between spouses/life partners is generally invalid if the marriage/life partnership is divorced/dissolved. A joint will can have similar effects to an inheritance contract, but only spouses and registered civil partners can conclude such a will.

An inheritance contract can only be concluded before a notary. You can draw up individual wills or joint wills yourself by hand or have them notarized by a notary.

A notarized will or a notarized inheritance contract offer a number of advantages over a handwritten will:

  • The notarized will or notarized inheritance contract also serves as proof of inheritance for the land registry and other authorities. You therefore no longer need to apply for a certificate of inheritance. A private will is only sufficient vis-à-vis banks and savings banks if it clearly states the order of succession. A private will is never sufficient for the land registry.
  • The costs for a certificate of inheritance and the application required for this are usually significantly higher than the costs for the notarization of a will or inheritance contract.
  • A notarized will or a notarized contract of inheritance generally accelerates and simplifies the settlement of an estate after a death. In most cases, the issuing of a certificate of inheritance takes considerably longer than the opening of notarized dispositions of property upon death. To obtain a certificate of inheritance in the case of intestate succession, you must also provide civil status documents (in particular birth, death and marriage certificates) and, if necessary, other documents (e.g. adoption decree, divorce decree). These are sometimes difficult to obtain - especially from abroad. In addition, this often results in a further delay.
  • A notarized will or a notarized contract of inheritance are legally unambiguous and clear.In the case of a private will, it is often unclear what the testator wanted. This can lead to the testator not achieving what he intended with his will. An ambiguous handwritten will can lead to disputes and lawsuits between the heirs and legatees over the interpretation. A notarized will or a notarized inheritance contract is therefore more legally secure.
  • Handwritten wills are often drawn up in ignorance of the legal options available to the testator. It is possible that a different form would be more suitable or more favorable for their situation, which they were not aware of. The notary will show you the arrangements that are suitable for your situation and your wishes. This enables you to make a well-informed decision that is right for you. Advice - even multiple times - is already included in the fees!
  • In the case of notarial wills and inheritance contracts, the notary examines the testamentary capacity and establishes it (or any doubts about it) in the deed, if necessary after consulting with doctors and/or submitting medical certificates. Notarial wills and inheritance contracts are therefore more difficult to challenge with regard to the testator's testamentary capacity than private wills, where no such determination is made.
  • Notarized wills and inheritance contracts are always typewritten and therefore easily legible and unambiguous. The notary reads them to the parties involved. Handwritten texts are often not easy to read and can therefore lead to comprehension difficulties.
  • Notarized wills and inheritance contracts are always stored securely (at the notary's office or at the court) and registered in the Central Register of Wills. This ensures that they can be found in the event of death and opened at the probate court. Although it is also possible to deposit private wills with the local court, this is not mandatory. If they are not deposited - as is often the case - there is no guarantee that the testator's will will be valid later on. In the case of inheritance contracts, notarial safe custody is free of charge. The (mandatory) deposit of wills with the court costs a one-off fee of € 75.

The following misunderstandings about inheritance law are widespread:

  • Inheritance rights of the spouse / partner: The surviving spouse does NOT automatically inherit the entire estate when the first spouse dies. Rather, the children always inherit as well. If there are no children, the parents, alternatively the siblings and even the grandparents inherit as well. This also applies in particular to a jointly acquired property! These relatives are therefore also involved in the inheritance if there is no will or inheritance contract. If you are not married to your partner or do not live in a registered civil partnership, your partner will not inherit anything by law!
  • This can lead to subsequent problems: The relatives suddenly have a stake in the property, even though they have not contributed to it financially. They can have a say in deciding whether, to whom and at what price the property should be sold. If the heirs cannot agree, a co-heir can also apply for a partition auction to divide up the property. In all cases, the surviving partner may have to move out of the house. If underage children inherit, the property can only be disposed of with the approval of the family court. This leads to considerable delays and increased costs.
  • As a rule, it therefore makes sense to deviate from the legal order of succession. For example, you can appoint your partner as your sole heir so that he/she is fully protected. If, on the other hand, relatives are (also) to inherit, the partner can at least be protected by a right of residence, cash or pension legacies or in some other way.
  • Entitlement to a compulsory portion: The compulsory share is always a purely monetary claim. The person entitled to a compulsory portion can assert this claim against the heir or the community of heirs. The compulsory portion consists of half of the inheritance share that the person entitled to the compulsory portion would have received in the case of statutory succession. Only spouses/registered partners and descendants (children, alternatively grandchildren) of the deceased are entitled to a compulsory portion. If there are no descendants and the parents are still alive at the time of death, they are also entitled to a compulsory portion. Other relatives are not entitled to a compulsory portion, in particular not siblings, uncles, aunts, cousins and cousins. The compulsory portion is particularly relevant if you exclude relatives entitled to a compulsory portion and/or your spouse/partner from the succession in a will or inheritance contract: They can then claim their compulsory portion in the event of your death. You can only unilaterally withdraw the compulsory portion if there are special exceptional reasons, in particular if the person entitled to the compulsory portion has committed a serious crime (see Section 2333 BGB). If the person entitled to the compulsory portion agrees, you can conclude a contract with them in which they waive their compulsory portion in advance (waiver of compulsory portion). In some cases, however, the beneficiary of the compulsory portion will only be prepared to waive their right in return for payment of a settlement or other consideration.
  • No mere distribution of assets: In private wills, testators often simply distribute their assets without making any further legal distinctions (example: “Stefan gets my apartment in Monheim am Rhein, Frank gets my vacation home in Tenerife, Gaby and Paul are to share my deposit at the savings bank, Barbara inherits the car...”). In such cases, it is often not clear who has become an heir in the legal sense and who has only become a legatee. The heir(s) are the universal successors of the deceased. They inherit all assets and debts, in particular also the items that the testator did not mention separately. In the example given above, for example, the question would arise as to who receives the household effects, the stamp collection and a bank account that the testator did not even list separately. In addition, it would not be clear who should settle any existing debts. It therefore generally makes sense to clearly name one or more heirs. In contrast to an heir, a legatee is not a universal successor: as a rule, they only receive a specific item. The heir must transfer this object to the legatee from the estate. If necessary, this can also be the task of an appointed executor. The lack of distinction between heir and legatee is often one of the main problems with privately drafted wills. This can lead to delays and problems of interpretation, particularly in inheritance certificate proceedings, because it is not clear who has become an heir and what their share of the estate is.
  • No automatic inheritance of individual items: Closely related to this is the misunderstanding that the testator can bequeath certain items to individual persons with the effect that these persons automatically become the owners of these items upon death. In the previous example (“Stefan gets my apartment in Monheim am Rhein, Frank gets my vacation home in Tenerife, Gaby and Paul should share my deposit at the savings bank, Barbara inherits the car...”), the named persons do not automatically receive the respective items. Instead, the heirs always inherit all the items as a community of heirs. This means that all the items in the estate initially belong to them jointly (in legal terms: “in joint ownership”). If there is only one heir, he or she initially owns all items alone (i.e. he or she is the sole owner); there is then no community of heirs. If the testator has allocated certain items to the heirs or if the heirs have agreed on a certain distribution of the items, they must conclude a contract to allocate these items to each other. This contract is called an “inheritance distribution contract”. The word “settlement” has nothing to do with a dispute between the heirs. Rather, it is about the heirs dividing the items in the estate among themselves, i.e. “settling” the community between them. Only after this division do the items in the estate belong to individual persons. The same applies if the testator has designated legatees (i.e. they are not heirs from the outset, but only receive an individual item): Then the heir (or heirs) must transfer the item from the estate to the legatees by contract. This contract is called a “legacy fulfillment contract”. Only after the effective execution of the legacy fulfillment contract does the legatee own the items that the testator has given him in the will or inheritance contract.
  • No proof of inheritance for real estate with a handwritten will: If you write your will yourself (and do not have it notarized), there is no comprehensive proof of inheritance. According to case law, banks must accept a will that you have written yourself if it is clear. However, a self-written will is never sufficient for the land registry. So if you have a house or apartment, your heirs cannot simply have the land register transferred to you if you only have a handwritten will. You must then always apply for a certificate of inheritance first. Both the application for a certificate of inheritance and the issuing of the certificate itself are costly and time-consuming. As a rule, these costs are significantly higher than drawing up a will during your lifetime with a notary. With a notarized will (or notarized contract of inheritance), your heirs can have the land register corrected in their name more quickly and easily (in particular without any further costs for a certificate of inheritance).

Balance sheet

Do you know how big your assets are? Most people are only vaguely aware of the actual value of their assets. A statement of assets gives you a complete overview, especially so that you don't forget anything when settling your estate. It will also make it easier for your heirs to settle your estate.

On the one hand, your assets include your so-called positive assets. These include, among other things

  • Bank and savings balances (current account, savings book, building society savings contract, securities, fund units)
  • Company shares
  • Claims from life/pension insurance policies
  • valuable collections, antiques (e.g. coins, stamps)
  • TV, stereo system, laptop/PC
  • Private car, motorcycle, trailer, caravan
  • Household effects/home furnishings/art objects
  • Clothing and other personal items (e.g. jewelry, handbags, books)
  • Claims against third parties (e.g. due to a divorce, from loans to family or friends)
  • Real estate
  • Company or practice

On the other hand, you should also break down your so-called negative assets. This includes debts in particular, for example

  • Real estate loans and building society loans
  • overdrawn accounts
  • Rent or tax debts

Death benefits are not part of the estate. These are usually agreed in the insurance contract. You can only override the contractual provision by amending the contract, but not by disposition on death. If you wish to transfer the subscription right to another person (for example, to a grandchild instead of a spouse), you must amend the contract accordingly during your lifetime.