Law of succession
Over the past years the law of succession has gained constantly growing significance and it is to be anticipated that it will have to be attributed a growing importance for the years to come.
In those cases where no last will and testament has been left and where no contract of inheritance or succession was made it is statutory intestate succession which will apply under German law. In order to avoid undesired and controversial communities of heirs it is to be recommended to either proceed to a conveyance or transfer of property and donations inter vivos or to make testamentary dispositions by way of a last will.
The making of a last will and testament or of a marriage contract will allow to provide for a succession to a testator’s estate, which deviates from the provisions of statutory succession law. In cases where the testator’s descendants, spouse or even parents (if there are neither children nor a spouse) are excluded from succession by such a will or contract, these persons can still assert a claim to a compulsory portion of the estate concerned. Such a claim to a compulsory portion will then correspond to one half portion of the statutory share of an estate and it may be denied or revoked under extremely restricted conditions only.
In making a last will and testament it is not only the appointment of an heir or heirs but, amongst other things, also the following issues for which provisions may be made:
- Provisional heir/remainder
- Direction(s) given by the testator concerning the partitioning of the estate
- Directions concerning legacies, life estates, usufruct
- Execution of will
Any testator/testatrix may make his or her last will and testament by way of a hand-written declaration or by a last will at a notary public. Both of these forms of testamentary dispositions have the same legal status and value.
Special care and attention must be given to cases with estate planning of an entrepreneur in order to ensure that provisions relating to company law aspects on the one hand and provisions relating to the aspects of hereditary succession on the other hand will be congruent and risks of non-coincidence and non-correspondence are avoided. It is with this in mind that all viewpoints, issues and problems which might be involved in the succession of a company ought to be carefully considered and planned in good time ahead.
In cases and situations where individuals are not, or no longer, capable of handling and deciding on their own affairs as long as they are alive the instrumentarium to which recourse can be had comprises :
- Living will
- Precautionary powers of attorney
- Advance health care directive
which constitute an effective and valid documentation and evidence of a patient’s wishes.
It was per 01 September 2009 that a statutory provision concerning patients’ living wills was enacted, which stipulates that any one patient’s living will must be respected and taken into due account, regardless of what the type and the stage of his or her respective illness or disease is.
Even though there are numerous form sheets which are available and helpful for drafting a living will and precautionary powers of attorney, it is recommended that interested individuals do take their time to think it over carefully whether these general standard forms are actually appropriate and well suited and whether they make sense in consideration of the respective individual’s own needs and requirements.
Our expert lawyers who are certified specialists in law of succession will not only give you counsel and advice when you come to think of precautionary measures of which you plan that they are to be taken for your later possibly handicapped life but also when a testator’s death has already occurred. This includes, in particular, the settlement and division of an estate between communities of co-heirs, the assertion of and/or the defence against claims to a compulsory portion of the estate, clients’ representation in proceedings concerning the delivery of Heirs’ Certificates and cases where litigations are pending with Courts of Justice.