Grandma died. Mom and uncle split inheritance. Now he's suing for more. Help

24 posts in this topic

My partner's mom and uncle split an inheritance evenly. Now he is threatening to sue for even more. What should we do?

 

After grandma died (at almost 90), my partner's mom and uncle inherited grandma's house (in northern Germany). It took almost a year to finalize the sale of the house, along with the piles of paperwork and never-ending notary fees. There was a delay when it was discovered that house's deed was not in grandma's name (it was still in grandpa's name).

 

My partner's mom was looking forward to using the much needed money to pay for repairs on her own old house. Last week it looked like the funds were about to be released and that the legal limbo would be over.

 

A few days ago my partner's uncle came by to threaten to sue. He got a lawyer to access grandma's banking records. He claims there is 200,000 euros missing and wants his cut.

 

When grandma was alive she had been collecting her retirement and grandpa's pension (totaling over 1500 euros per month, for more than 20 years). Each month, my partner's mom would withdraw some cash from the bank for grandma. Because it was more than grandma needed, she gave both her children a small monthly "allowance" when they visited or came over to do errands.

 

My partner's mom received a bit more than my partner's uncle - a couple of hundred euros instead of one hundred. It was not a large amount, but it helped to pay for some groceries.

 

I learned from Toytown that someone can make claim to "gifts" given to other family members for up to 10 years:

https://www.toytowngermany.com/forum/topic/359728-does-this-circumvent-the-inheritance-law-in-germany/


By my calculation, the maximum the uncle could be entitled to is only about 6,000 euros (difference in monthly allowance, limited within 10 years). This is far from the 200,000 euros the uncle claims is there.

 

From what I know, the uncle is significantly better off than my partner's mom. But the two didn't have a great sibling relationship growing up. The uncle has a history of suing people; many years ago he successfully got a settlement from a medical malpractice suit.


Here is what has happened since the lawsuit threat:

 

- My partner's mom called 2 local lawyers and they both told her the same things:
"Yup, he can sue for his share of past gifts". "If you haven't been contacted by his lawyer, there is nothing for you to do at the moment".

 

- My partner instructed her mom to cut off all contact with the uncle

 

- I suggested gathering all relevant receipts/paperwork

 

- In a few days it will be the 1 year anniversary of grandma's passing. I guess all future family reunions are cancelled


Questions for all you fine folks:

 

- Is there something more my partner and her mom can do?

 

- Does anyone know of any easy spells or curses for grumpy, old German men?


Thank you kindly

1

Share this post


Link to post
Share on other sites
8 minutes ago, Waschbär said:

 

- Is there something more my partner and her mom can do?

Ignore the claim and keep the lawyer ready. He has to prove the missing amount being swindled away. It was the grandmom's decision to give one of her kid more than other and she was entitled to do so. 

 

 

8 minutes ago, Waschbär said:

- Does anyone know of any easy spells or curses for grumpy, old German men?

No Christmas greetings perhaps.. 

1

Share this post


Link to post
Share on other sites
24 minutes ago, vivanco said:

It was the grandmom's decision to give one of her kid more than other and she was entitled to do so. 

 

It is a bit more complicated than that in Germany.  

1

Share this post


Link to post
Share on other sites
2 hours ago, Waschbär said:

Does anyone know of any easy spells or curses for grumpy, old German men?

Trojan horses. Chocolates. Syringes. :ph34r:

1

Share this post


Link to post
Share on other sites
2 hours ago, Waschbär said:

I learned from Toytown that someone can make claim to "gifts" given to other family members for up to 10 years:

Yes, it´s called "Pflichtteilsergänzungsanspruch". My uncle sued my mom for it 40 years ago. The thing is though that as far as I remember you need to waive your inheritance claim and opt for your mandatory share (Pflichtteil) in order to have that claim. In my mom´s case her lawyer managed to delay the issue until it had reached the statute of limitations (can´t remember whether it was 2 or 3 years).

 

Check § 2325 here: https://www.gesetze-im-internet.de/englisch_bgb/englisch_bgb.html

1

Share this post


Link to post
Share on other sites

@Waschbär

 

You need to clarify some things:

 

1.   What was the amount of cash sitting on Oma's account(s) on the date she died?

 

2.   Who, besides Oma, had permission and authority to access Oma's money during Oma's lifetime and how was that access exercised and/or documented, e.g. Vollmacht?  Eurocard with PIN?  etc.

 

3.  Over what period of time did such person have access?

 

4.  What financial management services did the person with access perform for Oma?

 

5.   What other potentially compensible non-financial services did the person with access and/or others (e.g. grandchildren) perform in exchange for an "allowance" or other payments?

 

You see where I'm going with this?

 

Uncle's claim is predicated on there having been an unequal Schenkung or Zuwendung.  If, however, the amounts involved represent compensation for unequal services and/or reimbursement of expenses rendered by a person who undertook the management of Oma's finances and person then Uncle may not have a case.

 

 

0

Share this post


Link to post
Share on other sites

Per German inheritance law, every and all gifts made in the last ten years of her life can be demanded back and added to the inheritance for distribution, regardless if unequal or not.

Uncle will always have a case.

0

Share this post


Link to post
Share on other sites
51 minutes ago, jeba said:

Yes, it´s called "Pflichtteilsergänzungsanspruch".

 

Actually, it is not.

 

Rather, it is the so-called "Ausgleichspflcht für Abkömmlinge als gesetzliche Erben" found in §2050 of the BGB:

 

https://dejure.org/gesetze/BGB/2050.html

 

Unlike Pflichteilsergänzungsansprüche it does not apply to protect someone who is disinherited but rather where there is no will and one of multiple co-equal heirs at law (gesetzliche Erben) - specifically: descendents of the decedent -  has been disadvantaged by an unequal distribution of lifetime gifts to the other heir(s).

 

Here is a explanation in German:

 

https://www.recht-finanzen.de/contents/1261-welche-geschenke-gehoeren-zum-nachlass

 

 

1

Share this post


Link to post
Share on other sites
12 minutes ago, Metall said:

Per German inheritance law, every and all gifts made in the last ten years of her life

 

§2050 BGB contains no 10-year limit on its provisions.

1

Share this post


Link to post
Share on other sites
25 minutes ago, Metall said:

Per German inheritance law, every and all gifts made in the last ten years of her life can be demanded back and added to the inheritance for distribution, regardless if unequal or not.

Uncle will always have a case.

 

12 minutes ago, Straightpoop said:

 

§2050 BGB contains no 10-year limit on its provisions.

 

To clarify: 100% of the gifts  made in the first year before death will demanded back, then it drops by 10% every additional year.

And it's all irrespective of if the case is about the Pflichtteil or regular share of inheritance.

EDIT: Had to fix the years because I initially misread.

 

10-Jahres-Frist: Pro-Rata-Regelung

Seit dem 1. Januar 2010 gilt eine Pro-Rata-Regelung (eingeführt durch Gesetz vom 24. September 2009). Danach wird eine Schenkung innerhalb des ersten Jahres vor dem Erbfall in vollem Umfang (100 Prozent) berücksichtigt. Für jedes weitere Jahr vor dem Erbfall sinkt der Anteil um jeweils ein Zehntel.

Innerhalb des sechsten Jahres vor dem Erbfall wird eine Schenkung dann z.B. nur in Höhe von 50 Prozent angerechnet. Sobald zehn Jahre seit der Leistung des verschenkten Gegenstandes vergangen sind, bleibt die Schenkung komplett unberücksichtigt.

https://www.recht-finanzen.de/contents/1261-welche-geschenke-gehoeren-zum-nachlass

0

Share this post


Link to post
Share on other sites

@Metall

 

You are discussing the rules applicable to Pflichtteilergänzungspflicht § 2325 of the BGB.

 

They are not applicable to this case where there is no Pflichtteil claim involved.

 

Instead this case apparently involves § 2050 of the BGB.

 

For a useful discussion of both I would recommend:

 

http://www.notare-wuerttemberg.de/downloads/bwnotz-3-2010.pdf

 

@Waschbär

 

The article referenced above seems to indicate that mere cash gifts as opposed to "Ausstattungen" or "Zuschüße" for an Ausbildung will not be added to the estate for distribution under §2050 unless the donor/decedent specifically so provided in a contemporaneous document at the time of the gift (§ 2050 Abs. 3 BGB).  So it could be that Uncle is barking up the wrong tree or just trying to intimidate.

 

 

3

Share this post


Link to post
Share on other sites

Bottom line: german law knows what's best for you to do with your own money.  It knows what's "fair" and can provide a blanket definition that covers all conditions, even if it's against your will (pun intended) and can do so retroactively.

On the other hand, anyone can sue anyone anywhere.

In the case above, just who do you think profits from the laws they create?

5

Share this post


Link to post
Share on other sites
4 hours ago, Straightpoop said:

 

Actually, it is not.

 

Rather, it is the so-called "Ausgleichspflcht für Abkömmlinge als gesetzliche Erben" found in §2050 of the BGB:

 

https://dejure.org/gesetze/BGB/2050.html

 

Unlike Pflichteilsergänzungsansprüche it does not apply to protect someone who is disinherited but rather where there is no will and one of multiple co-equal heirs at law (gesetzliche Erben) - specifically: descendents of the decedent -  has been disadvantaged by an unequal distribution of lifetime gifts to the other heir(s).

 

Here is a explanation in German:

 

https://www.recht-finanzen.de/contents/1261-welche-geschenke-gehoeren-zum-nachlass

 

 

Interesting. I wasn´t aware of that (which is no surprise as I´m no lawyer). However, §2050 seems to be applicable to gifts only which were meant to be an "Ausstattung". It´s probably up to a legal professional to decide whether the gifts in the OP´s partner´s case were Ausstattungen.

Apart from that I seem to remember that an heir can waive their inheritance claim and rather demand their "Pflichtteil" augmented by the "Pflichtteilsergänzungsanspruch" according to § 2325 (which can make sense if the inheritance is a lot less than the gifts given away).

2

Share this post


Link to post
Share on other sites

@jeba

 

Your observations are well taken.

 

§2050 and its interaction, if any, with §2325 are subjects new to me as well. (The stuff you learn on TT!)

 

You are correct about the possibility of a waiver. (The English legal term of art is "disclaimer" = Ausschlagen auf Deutsch.)

 

The only way "Uncle" in the OP's case could assert a claim based on an augmented Pflichtteilanspruch (§2325) would be to first disclaim (Ausschlagen) his inheritance (worth 50% of the estate's value at death).  His expectation/tactic in such a case being that his 25% Pflichtteil applied to the estate value at death plus the augmentation of §2325 would exceed his 50% inheritance share of the  just the estate's value at death (augmented - if appropriate - by §2050).

 

There was no mention of such a disclaimer in the OP's facts and circumstantially it seems unlikely that a disclaimer was made within the 6 week deadline for making a disclaimer.

 

And, as you rightly observe, §2050 requires augmentation only in 3 instances, none of which (so far as we know) apply here:  an Ausstattung, a disproportionate Zuschuß for education or a gift intended as an "advancement" as evidenced by a contemporaneous declaration by the decedent donor.

 

What we don't know is how much of that  €200K was still in Oma's accounts at the time of her death and whether Uncle ever received his 50% interest in that value in the Auseinandersetzung.

 

Just speculating:  If the disparity was sufficiently great - and otherwise unexplained - it could be that Uncle is asserting a claim that may be predicated on misappropriation of Oma's money by his sister rather than §2325 or §2050.  Alternatively, he may be asserting his right to an accounting/information from a co-heir in an effort to find out where the money may have gone.

 

 

 

 

 

2

Share this post


Link to post
Share on other sites

 

On 3.10.2020, 09:59:58, Waschbär said:

When grandma was alive she had been collecting her retirement and grandpa's pension (totaling over 1500 euros per month, for more than 20 years). Each month, my partner's mom would withdraw some cash from the bank for grandma. Because it was more than grandma needed, she gave both her children a small monthly "allowance" when they visited or came over to do errands.

 

 

Maybe I am the only one here who sees things in a different light.

 

Why was more money taken out of the account then Grandma needed? If it had been left in the account it would have gained interest each year.

To give her children money for visiting their own Grandma or doing little errands for her leaves me speechless.  

 

0

Share this post


Link to post
Share on other sites
1 minute ago, White Rose of Yorkshire said:

To give her children money for visiting their own Grandma or doing little errands for her leaves me speechless.  

 

. . . and Uncle asking questions.

1

Share this post


Link to post
Share on other sites

I think the question is who is the 'She' in this sentence:-

29 minutes ago, White Rose of Yorkshire said:

Because it was more than grandma needed, she gave both her children a small monthly "allowance" when they visited or came over to do errands.

 

If 'she' is grandma then so what, giving your grandkids an allowance is a really common way for older folks to spend some of their money.

If 'she' is 'the partners mom' then I can see why the uncle is asking awkward questions.

 

EDIT: Sorry the quoting is attributing that to the wrong poster. Of course it was @Waschbär who said that.

1

Share this post


Link to post
Share on other sites
17 minutes ago, pappnase said:

If 'she' is grandma then so what, giving your grandkids an allowance is a really common way for older folks to spend some of their money.

Indeed. E. g. my grandmother let my dad - and once he had died myself - stay for free in a flat she owned. And I know it´s a deviation from the topic but I can´t resist to point out that this was a case in which renter protection laws contributed to increasing the housing shortage; When my dad died I was working in a different town. So the flat had stayed empty for more than a year because grandma didn´t want risk that a tenant might not leave by the time I´d move back to my hometown. And it could well have stayed empty for longer as it wasn´t really sure whether I´d move back at all.

1

Share this post


Link to post
Share on other sites
5 hours ago, pappnase said:

I think the question is who is the 'She' in this sentence:-

 

If 'she' is grandma then so what, giving your grandkids an allowance is a really common way for older folks to spend some of their money.

If 'she' is 'the partners mom' then I can see why the uncle is asking awkward questions.

 

EDIT: Sorry the quoting is attributing that to the wrong poster. Of course it was @Waschbär who said that.

Another way of reading it is that "she" (being grandmother), gave money to "her" (also being grandmother) children which could have included uncle. 

1

Share this post


Link to post
Share on other sites

Create an account or sign in to comment

You need to be a member in order to leave a comment

Create an account

Sign up for a new account in our community. It's easy!


Register a new account

Sign in

Already have an account? Sign in here.


Sign In Now