Distribution of Assets (Erbauseinandersetzung)
english > German inheritance law in English
How and when does one become an heir or legatee?
If the deceased has left a will, the will takes priority over the rules of legal succession.
Consequently, only those persons named in the will inherit from the estate if the testator gave instructions about the entire estate in his or her will.
For details of who is entitled to a compulsory portion (Pflichtteil).
On the death of the testator, the inheritance legally passes to the heir or heirs (principle of automatic acquisition of the inheritance).
However, heirs are entitled to waive their inheritance.
The testator may also leave a legacy or bequest (Vermächtnis) in his or her will, e.g. by allocating individual items or specific sums of money to particular people.
In such cases, the recipients of the legacy/bequest (‘legatees’) are not classed as heirs but have a claim against the heir(s) for whatever it is that has been specifically left to them in the will.
Distribution of the assets (Erbauseinandersetzung)
If there are multiple heirs ofthe estate (Miterben), the community of heirs assums joint ownership.
As a result, the coheirs are only permitted to dispose of individual items of the estate by acting jointly, e.g. for the purpose of selling the testator's car if it is no longer required.
They must also manage the inheritance jointly. This often causes major difficulties, particularly if the heirs live far apart and cannot come to an agreement.
This ‘forced community’ (Erbengemeinschaft) is inconvenient and, in principle, each heir can ask for the community to be dissolved by requesting the partitioning of the estate.
The most important exception in this regard is when the testator has stipulated in his or her will that the estate is not to be divided up, e.g. so that a family business can continue operating.
If the testator has appointed an executor, he or she is responsible for partitioning the estate. If not, the heirs must do it themselves.
For this purpose, they are allowed to seek assistance by a lawyer or - more costly - notary.
If the heirs fail to reach an agreement legal action may be necessary.
Dr. Wolfgang Buerstedde is ready to help dissolve the estate between the coheirs.
