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Draw up a will – secure your inheritance
Would you like to create a will and arrange your estate to clearly define the inheritance? Would you also like to benefit from tax advantages?
Inheritances occur every day in Germany, and disputes often arise within families when there is no will. Protect yourself from conflict and determine how your inheritance should be distributed. Without a will, inheritance follows the provisions of the German Civil Code (BGB). With a will, however, you have the opportunity to determine who should inherit what – or even exclude certain relatives from the inheritance.
For your final wishes to be considered, your will must be legally valid. There are numerous regulations that must be observed. Otherwise, you risk losing your will's validity, which can lead to inheritance disputes. We will support you in drafting your will and show you how to pass on your inheritance in a tax-efficient manner – so that your inheritance arrives safely and without any unwanted surprises.
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3How to create a legally valid will
For your will to be legally valid, a few important points must be observed:
A will is a testamentary disposition by which the testator determines who will inherit. The heir or community of heirs assumes the legal position of the testator. Individual portions of the estate can be inherited individually.
Possible provisions in the will:
- Inheritance: Determination of heirs.
- Disinheritance: Exclusion of legal heirs.
- legacy: Certain assets, such as money or a right of residence, are assigned to specific people without them becoming the full heirs.
- Conditions: The heir is obliged to perform certain actions or omit certain actions, e.g., to maintain the grave.
- Division arrangements: Regulation of the division of the inheritance in the case of multiple heirs.
- Withdrawal or restriction of compulsory portion: Restriction of compulsory share claims.
Validity of the will
- Capacity to make a will: The testator must be at least 16 years old and mentally capable of expressing his or her last will.
- Formal requirementsA will can be drawn up either as a public notarized will or as a private handwritten will. A joint will is also possible.
Types of wills
- Public notarial will: The testator declares his last will before a notary who draws up the will.
- Private handwritten will: Must be handwritten, signed, and dated and located in the original. Addendums must also be signed.
- Spousal will: Spouses or same-sex partners can draft a will jointly. A joint will (e.g., a Berlin will) binds both testators and stipulates that their children will be the heirs of the deceased.
- ChangesA will can be changed, revoked or replaced by a new one at any time.
Nullity
A will can be declared invalid if it violates legal provisions, for example if it is immoral or violates the Nursing Home Act.
inheritance contract
A contract of inheritance binds the future heirs and can stipulate certain services, such as care or grave maintenance. It must be notarized.
Probate Court
The local district court at the last habitual residence of the testator is responsible for issuing the certificate of inheritance, keeping and opening wills, and appointing an administrator or executor.
Cost
The preparation of a private will is free of charge. A public will is subject to notary fees and custody costs, which are calculated according to the Court and Notary Fees Act (GNotKG).
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Inheritance of company shares – What you should pay attention to
When inheriting company shares, for example, in the case of a GmbH shareholder, the will must be consistent with the GmbH's articles of association. It is important that the succession clause in the will conforms to the provisions of the partnership agreement to avoid legal problems.
The shareholder's testamentary freedom is limited by the statutory share of the inheritance. A clever division of business and private assets, and possibly also through legacies, can help ensure a regulated company succession. Furthermore, the execution of the will should be stipulated in the will.
Inheritance of GmbH shares is also possible through a handwritten will, but succession in a company is often determined through inheritance contracts, frequently in conjunction with agreements waiving the right to a statutory share. Such contracts must be notarized to be legally valid.
Under certain conditions, GmbH shares can be inherited tax-free, with the Inheritance Tax Act providing tax privileges for inherited business assets. It is also important to review the tax implications, both with regard to inheritance tax and the company's income tax.
Please note inheritance and gift tax
When assets are transferred through inheritance or gift, both inheritance tax and gift tax may apply. These taxes are regulated by the Inheritance Tax Act (ErbStG) and the Inheritance Tax Implementation Ordinance (ErbStDV).
Inheritance tax applies to the assets that pass to the heirs after the testator's death. Gift tax, on the other hand, is due when assets are transferred to others during the testator's lifetime. Donations to foundations or associations are also subject to tax. Some assets are exempt from taxation, such as household goods or donations for maintenance or education. There are also tax breaks for occasional gifts and for developed properties transferred to spouses, life partners, children, or grandchildren, provided they continue to live in the property for 10 years. Business assets can be inherited or gifted tax-free under certain conditions.
The allowances and tax rates vary depending on the degree of relationship of the heir or donee. Spouses and civil partners have an allowance of EUR 500,000, while children receive an allowance of EUR 400,000. Grandchildren receive an allowance of EUR 200,000, while parents and grandparents receive an allowance of EUR 100,000. Additional heirs, such as siblings or nieces and nephews, can receive only EUR 20,000 tax-free. Depending on the tax bracket, a tax rate of EUR 7.50 per cent applies.
There are ways to optimize your tax burden. Gifts made more than 10 years ago are no longer taken into account, so the tax-free allowance can be used again for new gifts. Another option is to convert private assets into business assets, which can later be paid out as salary. Investing in low-tax asset classes can also help reduce your tax burden.
How we help you
We support you in drafting your will and ensure that your wishes are implemented in a legally secure and tax-optimized manner. With our many years of experience in inheritance law, we know what is important for making your will effective and optimizing the transfer of your assets to your heirs for tax purposes. As specialist lawyers for inheritance law, we can also advise you on other options such as inheritance contracts, legacies, or conditions that might be appropriate for your individual situation.
Our advice is tailored to your needs: We create a draft that you can copy by hand, or we prepare a public will, which we submit to the probate court for safekeeping. We will discuss all relevant costs with you in advance, including legal and court fees, and explain how you can benefit from potential savings through tax measures. This way, you have complete transparency and know exactly what to expect.
Professional advice & support
We offer you professional and comprehensive initial advice in the area of inheritance law. Take your chance and avoid mistakes.
