Testament and Inheritance Contract
Configuration
A last will and testament can be handwritten or also established with notarial certification. However, practice shows that many “self-made” handwritten testaments are unclearly formulated and they give rise to disputes and expensive court proceedings. For your own security, you should therefore choose a notarial testament.
The notarial testament offers the following advantages:
- The notary comprehensively advises you about legal configuration options. He ensures that the testament conveys your expectations and is also effective. The consultation, preparation of a draft and eventual changes to it, are included in the notary costs.
- The notary examines the testamentary capacity and thus protects it against subsequent legal disputes.
- By depositing a last will and testament with the district court, it will ensure that it is actually found in the event of death.
- The notarial last will and testament can save money on the certificate of inheritance in land register matters. The notary fees for the application and the court costs for the certificate of inheritance, which together amount to twice the notary’s fees for the will and testament, are thus omitted.
With personally written and signed wills, and due to a lack of knowledge, often only statements are given about the limited inheritance configuration options; who receives what, with the consequences that particularly with respect to the estate objects not mentioned, disputes are pre-programmed, whom shall receive them and in what share. In notarized dispositions of property upon death on the other hand, the question of who is to be the heir, or testator’s universal successor, is always in the foreground. Everything regarding individual items and other objects that are not intended for other people through bequest, then falls to the heir. Incidentally, the heir is always liable for repayment of the debts of the estate.
Since no one knows who will die first, the testator would do well to name replacement heirs. The replacement heir takes the place of the foreseen heir, if he has already died at the time of his inheritance or falls away for other reasons, especially through renouncement as heir of the inheritance.
Something entirely different is hidden behind the term, provisional heirs: The provisional heir inherits the assets only temporarily, and generally may retain them until his own death. However, he may not himself bequeath them. In fact, they generally fall back, after the death of the provisional heir, to the so-called reversionary heir originally dictated by the testator. If a provisional inheritance is ordered in a testament, then the provisional heir as well as the reversionary heir must be named.
The designation of an heir can also be performed by an inheritance contract that you conclude with the future heirs. Contracts of inheritance are common between spouses, which name one another as heir in it. However, unlike a testament, a contract of inheritance is in principle binding. It can only be changed with the approval of the other contract partners (ex: the spouse). So that this obligation is not inadvertently incurred, the notarial certification is mandated for the inheritance contract.
The notary issues the inheritance contracts and testaments, certified by him, to be deposited with the probate court and resisters them with the central last will and testament register (ZTR) kept by the National Association of Notaries. For this, the notary requires a copy of your birth certificate. Every death is reported to the central last will and testament register; they then examine whether a testament or inheritance contract is registered for the deceased person and then inform the probate court, in which the dispositions of property upon death was deposited. This procedure ensures that mortis causa dispositions, deposited with the probate court, are opened in the case of inheritance.
Anyone who, as a spouse, child or parent, would have become an heir in legal succession, but was excluded by testament or contract of inheritance, can assert their claim of the so-called statuary or compulsory portion. It is a monetary claim made against the heir. The amount of the compulsory portion is always half of the statutory inheritance rate. Anyone who would have inherited ¼ by legal succession, can now claim 1/8th of the value of the estate, as a compulsory portion.
The compulsory portion can, in principle, neither be excluded by testament, nor by inheritance contract. Only in very extreme cases of “gross ingratitude” (for example: by physical abuse), is the exclusion of the compulsory portion possible. However, the entitled beneficiary of the compulsory portion can voluntarily waive their future statuary portion before inheritance. Such a compulsory portion waiver agreement between heir and testator requires notarial certification.
Checklist
For the meeting with the notary, we ask you to consider the following questions and to bring along the following documents:
- Who should be appointed as an heir (complete name, date of birth, address), in the case of several heirs: at what shares?
- Should other people be receiving a bequest (money, objects)?
- If the heir dies before the testator: Who should be a replacement heir for him (for example, his children, wife, etc.)?
- Do last wills and testaments or inheritance contracts already exist? Please bring them with you.
Costs
Notary fees cannot be levied or negotiated at the will of the notary; they are strictly regulated by law. Decisive is the Court and Notary Fees Act that applies throughout federal territory. Therefore, the same fees are always charged by each notary for the same notarial activity.
The notarization fees are based on the so-called commercial value, for a last will and testament it is calculated using the so-called modified net assets of the person making the will at the time of the certification, using the following formula: (gross assets, open market values of all assets, less liabilities, at least half of the gross assets) x 1.3. For an inheritance contract, the modified net worth of both spouses is added together. In the notarization fees, the costs for consultation and draft creation as well as changes to it are included. In addition, there are usually some additional small expenses for copies, postage and telephone, the statutory value-added tax and the registration by the central register of last wills and testaments.
Examples:
| Testament | ||
| Commercial value: € 100.000,00 | Net notary costs | ca. € 280,00 |
| Inheritance contract | ||
| Commercial value: € 100.000,00 | Net notary costs | ca. € 550,00 |
