German Will and Testament
Testamentary dispositions under German inheritance law
A will can be used to determine inheritance in Germany in individual cases and to make further arrangements for the testamentary succession. The German inheritance law recognises different forms of wills. During inheritance proceedings, there are often disputes about the validity, contestability and proper interpretation of wills.
- draft legally secure and effective testamentary dispositions
- apply for certificates of inheritance on the basis of wills
- represent you in disputes about the validity or meaning of wills
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Do I need a German will?
If a testator has his last habitual residence in Germany, German inheritance law applies to him. If he wants to avoid legal succession, a German will must be drawn up. Even in cases where the testator does not have his last habitual residence in Germany, a German will may be necessary if there are German assets (for example, real estate) in the estate.
Overview of wills in Germany
In the following we discuss an overview of the most important issues concerning wills under German law:
- Formal requirements for wills
- Revocation of wills
- Contents of wills
- Freedom to make a will and compulsory share in Germany
- Probate of wills and inheritance certificate proceedings
- Contestation of wills
Formal requirements and testamentary capacity
In Germany, anyone who is at least 16 years old and mentally capable may make a will. A will is effective in form if it is either.
- completely written down by hand and signed
- or has been notarized before a notary public.
In addition, German law provides for a so-called " emergency will ("Nottestament ") as a special form if the testator no longer has enough time to draw up a notarized will. In this case, in particular, a will can also be declared orally in front of three witnesses. However, the will then has only a time-limited effectiveness.
Another option for a testamentary disposition is an inheritance contract with strict binding force. Inheritance contracts always require notarial certification.
Spouse's will ("Ehegattentestament")
A special feature of German law is the possibility of drawing up a spouse's will. In this case, it is a will (not a contract of inheritance), which can also be notarized or handwritten. A handwritten will has to be written by one spousel by hand and both must date and sign it at the end. A will drawn up in this way can - depending on the wishes of the spouses - have binding effect after the death of the first spouse, so that the survivor can no longer testify freely. This gives both partners and, if applicable, joint children a certain degree of security with regard to succession.
Revocation of wills
Under German law, wills can, in principle, be freely amended or revoked at any time. Wills can also be revoked by implication when a person makes a new will.
There are limits on revocation for joint wills. These can only be revoked during the lifetime of both spouses under strict conditions and in general, they cannot be revoked at all after the death of one spouse. Inheritance contracts also cannot normally be revoked unilaterally.
Contents the German will: appointment of heirs, bequest, condition, pre- and post-inheritance, execution of wills
Under German law, there are various ways to form one's last will and testament. The most important is the question of who becomes heir. Any person can become an heir (i.e. any natural person and any legal entity). One can be appointed as heir both as sole heir and as part of a community of heirs at a certain quota. Each heir participates according to his quota in all assets as well as in all liabilities (for example funeral costs). The latter can be a reason why heirs reject an inheritance in Germany. But beware: If you do not disclaim the inheritance within a very short period of time, you will be treated as if you had accepted the inheritance.
Bequests are to be distinguished from inheritances. Whereas an heir always receives a share of the estate, but not a concrete object, it is the other way around with a bequest. A legatee receives one (or more) concrete objects, although a bequest of money is also possible. Furthermore, the bequest differs from the inheritance in such a way that the legatee himself must actively claim his entitlement, whereas the heir becomes the owner in the inheritance without any action on his part.
When choosing beneficiaries, a testator in Germany can also stipulate that certain conditions be imposed on the beneficiaries. For example, it is often stipulated for minor heirs that their inheritance is to be administered by a third party until they reach the age of majority (or later) and is not to be paid out until they reach a certain age.
It is precisely in such cases that it makes sense to arrange for the execution of a will. The testator can appoint one (or more) executors to handle the estate. Likewise, an executor can be appointed as a so-called permanent executor („Dauertestamentsvollstrecker“) to manage the assets for an appropriate period of time.
Another possibility is the pre- and post-inheritance („Vor- und Nacherbschaft“). According to this, the testator appoints a person as a pre-heir, who, however, cannot dispose of the inheritance without restrictions, since another person subsequently receives the inheritance as a post-heir.
Among the most important inheritance provisions are:
- Appointment of heirs and determination of inheritance quotas
- Bequests of certain assets in favour of individuals
- Conditions with which heirs must comply
- Guardianship provision for minor heirs
- Executions of wills
You should discuss which provisions are permissible and appropriate in a specific case with an experienced certified specialist for inheritance law.
Freedom to make a will and compulsory share in Germany
In Germany, it is possible in principle to nullify the statutory right of inheritance by drawing up a testamentary disposition. However, there are certain groups of people who are entitled to a so-called compulsory portion („Pflichtteilsanspruch“) as a minimum claim. This means that they can always receive at least half of the statutory inheritance share in money. If they are granted less in their wills, they can assert their monetary claim against the heir or heirs. There is not only a claim to a compulsory portion, but also a so-called claim to a supplementary compulsory portion („Pflichtteilsergänzungsanspruch“), which standardizes a corresponding claim with regard to lifetime gifts.
Probate of wills and inheritance certificate proceedings
If an inheritance occurs, any wills must be opened by the probate court. To ensure this, there is an obligation to deliver wills to interested parties. The probate court then opens the existing testamentary dispositions.
In many cases, heirs need proof of their status as heirs. Possible forms of proof include:
- Presentation of an opened handwritten will (to be presented to banks for accounts, deposits, or safe deposit boxes)
- Presentation of an opened notarial will (to be presented to land or commercial registries)
- Presentation of a certificate of inheritance or a European Certificate of Succession
If the will is not sufficient as legitimation, a certificate of inheritance or, if necessary, a European Certificate of Succession must be obtained. The certificate of inheritance or the European Certificate of Succession is issued by the probate court. It shows the heirs and the amount of their inheritance shares.
Contestation of wills
It is not uncommon for there to be a dispute over the inheritance after a death occurs. With regard to the will, the following questions often arise:
- How are the individual provisions of the will to be understood (interpretation)?
- Is the will invalid, for example due to formal errors or lack of testamentary capacity?
- Is the will voidable, on the grounds of mistake or deceit on the part of the testator?