11. Apr 16

Rules of intestate succession apply in the absence of a will

Anybody who fails to prepare a will ought to be aware that the rules of intestate succession shall apply. These are not necessarily consistent with the testator’s wishes and may entail various other disadvantages.

GRP Rainer Lawyers and Tax Advisors in Cologne, Berlin, Bonn, Düsseldorf, Frankfurt, Hamburg, Munich, Stuttgart and London conclude: Anybody who is giving thought to their own death desires above all else to make sure that the surviving spouse and – as the case may be – their children will be well taken care of. It should be noted here that the spouse does not become the sole heir according to the rules of intestate succession, not even if they have no joint children. That is why one ought not to neglect preparing a will if one is to ensure that the estate is distributed in accordance with the testator’s wishes.

Bearing in mind claims to a compulsory portion, it is possible to designate heirs in a will who would not be taken into account according to the rules of intestate succession as well as distribute the estate differently. If, for instance, a couple have two children and one of the spouses passes away, half of the estate would go to the surviving spouse and each child would receive a quarter under the rules of intestate succession. Even if the marriage was childless, the spouse still would not become the sole heir. In this case, the parents of the deceased or his siblings would be entitled to a share of the inheritance.

It may therefore be advisable to draw up a will so as to provide the surviving spouse with economic security, otherwise the heirs form a community of heirs. This can prove to be particularly problematic if properties become part of the estate and the community of heirs then decides what is to become of these properties. This can result in the surviving spouse having to move out of the family home. A lot of couples opt for a so-called “Berliner Testament” (Berlin will) to guarantee material security. This typically involves the spouses mutually appointing each other as sole heirs and their children as final heirs.

If the decision has been made to prepare a will, care should be taken to ensure that the testamentary dispositions are clearly and unambiguously worded and do not leave any room for interpretation. It is also important to observe various formal specifications and statutory regulations.

Lawyers who are experienced in the field of succession law can provide advice regarding wills or contracts of inheritance and see to it that the testamentary dispositions are consistent with the testator’s wishes.

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