It never rains but it pours – sort out your last will and testament early on!
Without provisions in an inheritance contract or testament, surviving spouses regularly find themselves back in a joint-heir situation. If there are children involved, the surviving spouse and the children form a community of heirs. If there are no children, the surviving spouse and the parents of the deceased or the deceased’s siblings are grouped together in this involuntary community. In only few cases is the surviving spouse the sole heir by law. If parents of children are not married to one another when one of the partners dies, the surviving partner inherits nothing unless there is a corresponding testament or inheritance contract.
Communities of heirs are regularly undesirable. If the surviving spouse, for instance, would like to sell the family home, he/she requires the agreement of the other members of the community of heirs and must pay them out if required. Underage children cannot make decisions for themselves; the surviving parent requires agreement from a so-called supplementary guardian and the family court. These proceedings take a lot of time and can severely delay a necessary sale – there is also the risk of an economic misfortune.
In order to avoid these difficulties, young parents should take precautions early on. They can make each other their sole heirs reciprocally in order to prevent the creation of a community of heirs. This means that the surviving parent has the power to act unilaterally under any circumstances. The children can also already be made the subsequent heirs and beneficiaries, i.e., the heirs of the surviving spouse.
Sometimes both parents die prematurely. Provision can be made for this eventuality, too. For instance, the parents can order that their will be executed with the underage children as the heirs. This can govern when children receive assets from the estate and how much. The execution of a will is sometimes ordered for when children turn 27 years of age because offspring are often considered to be more responsible then than at 18 years of age.
Underage children who do not have any parents entitled as custodians, require a legal guardian who is appointed by the family court. The parents can also influence this process by appointing legal guardians for their children themselves. The family court can only deviate from this appointment in exceptional cases.
Dr. Herbert Buschkühle is an attorney-at-law/tax advisor/notary public/ specialist attorney for tax law/ specialist attorney for inheritance law at PKF WMS Dr. Buschkühle PartG mbB Rechtsanwälte Steuerberater, a co-operation partner of PKF WMS Bruns-Coppenrath & Partner mbB Wirtschaftsprüfungsgesellschaft Steuerberater Rechtsanwälte (member company of the PKF network).