05. Apr 16

OLG München: Contesting an inheritance due to over-indebtedness of the estate

An estate not only encompasses assets but also any debts of the testator. It is possible for the acceptance of an inheritance to be challenged due to a misapprehension regarding commercially material characteristics.

GRP Rainer Lawyers and Tax Advisors in Cologne, Berlin, Bonn, Düsseldorf, Frankfurt, Hamburg, Munich, Stuttgart and London conclude: According to the rules of succession law, an inheritance can be renounced within a period of six weeks from becoming aware of it, with this generally being a sensible move if the estate is over-indebted. However, if this only comes to light at a later stage, it may still be possible to challenge the acceptance of the inheritance.

This was the case in an inheritance matter that was tried before the Oberlandesgericht München (Higher Regional Court of Munich) (Az.: 31 Wx 54/15). The testator died in June 2012 and had been married to his second wife. In addition to the wife, the children from his first marriage also became heirs. They were informed of their status as co-heirs in September 2012 and served with the certificate of inheritance in March 2013. It wasn’t until May 2014 that the children lodged notarized statements with the probate court renouncing and contesting the inheritance. The reason given for the late statements was that it only became clear that the inheritance was burdened with loan debt following a court ruling in April 2014. Prior to this, the heirs had assumed that the claims in question had become time-barred. The probate court ruled that the challenge was ineffective because the six-month timeframe for raising a challenge had expired.

However, the OLG München took a different view, stating that the children had effectively challenged the acceptance of the inheritance due to a misapprehension concerning the over-indebtedness of the estate. It was said that a misapprehension on the part of an heir with respect to a commercially material characteristic has occurred if it is established after civil proceedings have been carried out that the claim, contrary to what the heir believed to be true, has not become time-barred and it is evident from then on that the estate is over-indebted. On the other hand, the Court also held that any misconceptions regarding the value of assets belonging to the estate would not justify contesting the acceptance or renunciation, as these do not constitute commercially material characteristics.

Before accepting or renouncing an inheritance, it might make sense to examine the estate. Lawyers who are experienced in the field of succession law can advise on all inheritance-related issues.

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