Making a last will and testament

101 posts in this topic

3 hours ago, kthxcia said:

 

that's very interesting. I presume the Heirs in this case would have to be over 18?

Probably. I only know that I was.

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On 7/15/2013, 7:01:39, jeba said:

 

It has to be hand-witten, otherwise it would be invalid according to German law. Whether German law applies to British citizens is another question - don't know. However, you can deposit your will at the local court to avoid that somebody disposes of it.

Could you advise if I live in Rheinland-Pfalz state (near to Mainz), which local court can I go to deposit my hand-written will?  Could you help to advise which website or link that I can refer to?  Or can I also deposit in a local court in Frankfurt?  Roughly how much does it takes and must it be done by a lawyer or I can also do it myself?

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58 minutes ago, Uniquely F said:

Could you advise if I live in Rheinland-Pfalz state (near to Mainz), which local court can I go to deposit my hand-written will?  Could you help to advise which website or link that I can refer to?  Or can I also deposit in a local court in Frankfurt?  Roughly how much does it takes and must it be done by a lawyer or I can also do it myself?

I only remember the rules in Bavaria where it´s the local "Amtsgericht" of the district in which you´re resident which is in charge and there is a small fee (below € 100). You don´t need a lawyer. If in doubt just give your local Amtsgericht a call.

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My wife and I are in the process of doing this now. Now like most people should have done this a long time ago.

we have written our wills (hat tip Panda Munich) and will file them with the local court,


Anyways  single friend mentioned setting up a Nachlassverwalter instead of a will. My understanding is that this is an executor who will settle your estate after your death. 

So this brings up a question to which I haven't been able to find an answer to. We are childless and no family here. Since German wills (or we die intestate) don't have executor who settles the estate? House will need to be sold, Contracts cancelled and taxes filled and eventually money transferred. There is no way anyone in my family would have even a clue where to even begin. This is the reason I want to use an Nachlassverwalter.


 

Thanks in advance

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7 hours ago, Rushrush said:

Since German wills (or we die intestate) don't have executor who settles the estate

They may or may not. It´s up to you.

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10 hours ago, Rushrush said:

There is no way anyone in my family would have even a clue where to even begin. This is the reason I want to use an Nachlassverwalter.

 

The German term for executor is "Testamentsvollstrecker".

 

A "Nachlaßverwalter" is what in the Anglo-Saxon world is commonly referred to as a "conservator", an individual appointed by a local court to collect and safeguard the property of a decedent whose heirs are undetermined or cannot be located until those heirs can be determined, located and contacted.

 

 

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8 hours ago, Straightpoop said:

 

The German term for executor is "Testamentsvollstrecker".

 

A "Nachlaßverwalter" is what in the Anglo-Saxon world is commonly referred to as a "conservator", an individual appointed by a local court to collect and safeguard the property of a decedent whose heirs are undetermined or cannot be located until those heirs can be determined, located and contacted.

 

 

Thank you that helps immensely!

 

I talked to my steuerbreater and I can set him up as a Testamentsvollstrecker (?) he he will take care of the estate I just haven't gotten around to it. In the meantime I gathering everything together (contracts assets etc)  and passing it on to my family along with this form. Obviously having a will is ideal but a nust in case. 

 

https://www.germany.info/blob/929670/0ae9beaf48badab5d626bd5f679cc019/inheritance-estate-questionaire-data.pdf

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@Rushrush

 

Be careful.  If you neither of you have children and/or a parent still living at death and you have no will, all your property located in Germany - and probably worldwide - will be inherited by the survivor of you by intestate succession.  All the survivor has to do is petition the local Nachlaßgericht for an Erbschein (certificate of inheritance) to take complete control of your property.  No need for a testamentvollstrecker; at least not after the first-to-die stage.

 

When the second to die departs this veil of tears, then a testamentsvollstrecker will make sense; especially if the survivor intends their estate to be shared by more than one person.

 

Moreover, if you have significant financial assets or other property located outside of Germany you would be well-advised to consider having two wills:  a German one governing your German assets and a US one for the US assets. Better yet:  US will substitutes discussed next.

 

A local US will can eliminate the need to "domesticate" your German will by seeking "ancillary probate" in the US.  Depending on the state and the assets involved, your German executor may or may not be able to act in that state which means the appointment of a local (usually expensive) US executor.

 

But before wrestling with US wills to govern the fate of assets after the second of you dies, the two of you should first consider will/probate alternatives especially with respect to US assets.  These might include joint tenancies with right of survivorship, transfer on death (TOD) arrangements, etc.  This will eliminate the sometimes outrageous costs of going through a US probate proceeding. And don't even think for a moment that a German Erbschein is going to be honored without first appointing a local "personal representative"  who will be entitled to help himself to a chunk of whatever is located in that jurisdiction.

 

The survivor can also use these US will substitutes to govern the ultimate destination of assets located in the US.

 

These substitutes have their quirks; advantages and disadvantages but especially if the assets are relatively small potatoes you will be doing yourselves and/or your heirs a great favor by considering their use.

 

Dual wills should specifically reference each other, clearly state their limited scope and must be drafted with care so that they do not contain words that might be interpreted as revoking the earlier one.

 

There are vast resources of a general information nature covering this subject freely available on the internet. 

 

Take the time to inform yourselves.

 

Don't rush.

 

 

 

 

 

 

 

 

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4 hours ago, Fietsrad said:

Who gets my wealth if I have no relatives?

 

They may be very many degrees distant from you and you may have no clue who they are but you have relatives.

 

In Germany if you die intestate with no known heirs a Nachlaßverwalter will be appointed to research your ancestry and - frequently with the assistance of commercial heir location services or genealogical researchers - discover who your relatives are and contact them. I have seen Nachlaßverwalters go to extraordinary lengths to find distant relatives; sometimes all over the world.

 

These will be what are referred to in the profession as "laughing heirs"; relatives who are complete strangers and won't miss you but are delighted to receive your assets.

 

In the US efforts to find heirs are generally not taken as seriously as in Germany so that after a search proves futile, property of the decedent will be held on deposit with a state's unclaimed asset repository and if unclaimed after whatever statutory period has elapsed - typically 7 years - will escheat to the state.

 

But let's not forget:  ultimately we are all related.

 

 

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Update: downloaded Questionnaire for the application for an inheritance certificate. It can be found online and filled in the name and current address of our family along with a basic list of assets, insurances and any accounts (banks, phone etc) that we have. Sent it to my sister in law and said, should we be killed in car crash than this is the form you use. By the time you pay fees, taxes and split everything 9 ways there will be very little to fight over. This is a much cheaper solution than paying a lawyer.

 

Secondly we did a hand written will and will eventually registrar it at city hall.

 

The reason for this is that I'm assuming that life will play out the same way for us as it did our parents. Once we hit 85 or so I will liquidate all our assets (including primary residence) and pass the money along. Won't need much to live on, pensions will be sufficient. Not too worried about cancelling everything. Actually read about one guy who died and the LL didn't find out for 3 years!!!!

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We moved back to Munich a little over a year ago and have bought a house in the suburbs (in joint names).

I saw an article in the The Local regarding wills recently but it seemed to be geared towards German citizens only.  I plan on contacting a Notar eventually but would like to really understand the process here a bit more.

My wife and I are from the UK and we “presumed” that when we make a will here, it would be very simple.  The house is passed to whichever one of us outlives the other.  And then afterwards, it is passed and shared equally to our next of kin.  She has two children from a previous relationship, I have two sisters.

A German colleague told me that my presumption was complete nonsense, that if my wife happened to pass away before me, the house is automatically shared between me and her children and if they wanted to, they hold the majority of the property and could decide to sell.  Or evict me.

I did laugh until I realised that she seemed quite serious.  I’m sort of still laughing now, can this really be true. Seems ludicrous to me.

And if I go before her, my sisters would suddenly become German property owners?!  They couldn’t care less and neither of our families would ever want this.

If we got a “simple” will made in the UK stating the above, would it even be legal here and acknowledged.

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Your colleague is, in principle, correct. The keyword to note is 'Pflichtteil', the compulsory share. This is the default situation if you die intestate, the surviving spouse inherits 50% of the estate and your offspring share the remaining 50% equally. You can make various sorts of will, either a joint will, known popularly as the Berliner Testament, or separate wills leaving your estate to each other. If your kids are fine with that, no problem. But  they can still legally demand their share and will get it unless you have inserted a penalty clause under which they would get a reduced amount.

Here's an overview:

https://www.german-probate-lawyer.com/en/detail/article/wills-in-germany-1514.html

Now I'm no lawyer and open to correction, but I'm almost certain that a UK will is recognised here, but that real estate comes under the law of the country where it is, eg in regards to inheritance tax. You should check this professionally.

 

I think the sisters, cousins-twice-removed scenario only applies if you die intestate and have no surviving children eg you all get wiped out in an accident. Then there is an order of who inherits, dependant on the degree of relatedness. Any surviving child of yours or their offspring of your kids get first dibs and cuts out the other relations. 

 

 

 

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1 hour ago, Feierabend said:

This is the default situation if you die intestate, the surviving spouse inherits 50% of the estate and your offspring share the remaining 50% equally.

So suriviving spouse then has 75 percent ownership of house? Offspring share the 25 percent?

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7 minutes ago, snowingagain said:

So suriviving spouse then has 75 percent ownership of house

 

Assuming that before death the house was owned 50/50 between husband and wife, then yes this seems to be the case.

On another thread I was also assured that case law meant it would be almost impossible for me to be forced to sell the house in order to give my kids their share.

 

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There is another thread here:  German Inheritance Laws - Page 5 - Legal - Toytown Germany

 

You can not legally disinherit your kids in Germany, not completely anyway but you could make a will for each other to inherit as much as legally possible.  That would lower the kids portion from sharing 25% of the estate they would otherwise have gotten to 12.5% which is the legal minimum.  Should they try to kick you out to sell the house, they would have to take you to court and a judge may decide that you shouldn't have to sell your home in order to pay them out.  Of course you would hope that doesn't happen but money / inheritance makes people a bit crazy sometimes.

 

Should you die first, according to  Ehegattenerbrecht & Erbfolge des Ehegatten | NDEEX  if you did not have a will, 12.5% (not 25) would go to your sisters since they are 2nd degree heirs vs. your wife's kids who are 1st degree or if you make a will to minimize your sisters share, it could go down to 6.25%.  Better figure this out sooner than later.

 

 

 

 

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On 14.3.2022, 13:41:43, LeonG said:

You can not legally disinherit your kids in Germany, not completely anyway

 

Technically, that is not quite true.

 

You can indeed "disinherit" your children - and anyone else - completely in Germany.

 

That is because, technically, the term "disinherit" (enterben) has a much more specific meaning in German language and law than it has in English.

 

In English, most non-professionals understand the word "heir" as someone who gets "anything of value from a decedent". This could include such things as a specific bequest, a legacy, a life estate, a residual interest, etc.

 

In Germany, however, an "heir" is a person who succeeds to the same legal rights and liabilities of the decedent either alone or shared with other heirs.  Thus, a person who dies with no will leaving a spouse and 2 children will have 3 "heirs" who will co-own the decedent's assets and will be jointly liable for the payment of his debts.

 

If, however, the same decedent by will names his main squeeze (as opposed to his spouse) as his "sole heir" he will have technically and perfectly legally completely disinherited his spouse and children.

 

As has been pointed out, however, both the disinherited spouse and children (in Germany) will (normally) retain so-called "forced share rights" (Pflichtteilsansprüche) that can be enforced against the actual heir.

 

These rights, however, are a claim to MONEY only.  The disinherited spouse and children will have no right, title or interest in any specific property of the decedent.

 

Thus, if the decedent owned real property solely in his own name and by will disinherited his spouse and children in favor of a girlfriend, the girlfriend would be sole owner of that real property to the exclusion of the decedent's spouse and children.  The disinherited family can, of course, assert a claim for money against the girlfriend and if she is illiquid she may have to sell the property to satisfy the claims or make some other kind of deal with the disinherited family members.  But, if she has enough to pay the forced share claims, the disinherited family members remain just that:  disinherited.

 

 

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2 hours ago, Straightpoop said:

Thus, if the decedent owned real property solely in his own name and by will disinherited his spouse and children in favor of a girlfriend, the girlfriend would be sole owner of that real property to the exclusion of the decedent's spouse and children. 

 

This reminded me of a major crap storm that occurred in my organization.  One of our employees divorced his wife of five years and remarried a much younger woman a few months later.  The divorce was bitter, but nothing more was said about it in the office.  About 20 years later, while still married to the second wife, the employee died.  Unfortunately, for the second wife, the employee never updated his beneficiary documents for his Thrift Savings Plan (the TSP is the government version of a 401(k) retirement plan), federal life insurance, or residual federal pay when he married her two decades earlier.

 

When he died, his first wife received everything because she was the named beneficiary. TSP created a beneficiary account for her, and she received a lump sum payment from his life insurance, as well as his last federal pay and converted annual leave.  The second wife of 20 years naturally complained and tried to sue for the benefits, but didn't have any success.  While everyone assumed the employee would want the benefits to go to his widow, he had 20 years to submit new beneficiary documents and didn't.

 

The very small silver lining to this cloud is the incident caused everyone I know to review their beneficiary documents.  At least two in my division realized they had made the same mistake and quickly corrected submitted new beneficiary forms.

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15 minutes ago, JG52 said:

While everyone assumed the employee would want the benefits to go to his widow, he had 20 years to submit new beneficiary documents and didn't.

 

There was a media storm about a similar case in my home country some years ago.  The husband had his ex wife as a beneficiary on his life insurance but his widow got everything else. The widow contacted every media that would listen about how this was an obvious mistake and how insurance should just correct it and how she's being left with nothing.  Meanwhile some friends of the ex husband said he knew exactly what he was doing.

 

On the other hand, sometimes people just let things slide.  Years ago, a coworker of mine died in a car crash.  We had some pitiful little life insurance through the employer but it would at least have helped with the funeral costs.  However, they didn't pay out because he never bothered to fill out the form.

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