Germany’s Basic Law guarantees testamentary freedom: Using a testament or inheritance contract, anyone can decide who they leave their assets to upon their death. At the same time, testators do not have to observe the legal order of succession. For instance, they can appoint people to whom they are not related as heirs, change the legal order of succession and order bequests or execution of the will. These arrangements can be made by a testament or inheritance contract.
All of the documents relevant to succession until the end of 2011 are registered in the testament registries of the registry offices and as of 2012 in the central testament registry of the Federal Council of Notaries (ZTR). In the event of death, this ensures that the documents will be taken into consideration in the inheritance proceedings. This ensures via procedural law that the last will documented in a notarial deed will actually be put into practice.
Forms of last will and testament
The testament can be set up as an individual document or as joint document for spouses and registered civil partnerships. Although a testament can also be written by testators themselves (entirely hand-written), it is strongly recommended that notarial advice and preparation is sought along with notarization: It is not uncommon for self-written testaments to contain ambiguities or errors that can lead to disputes later on. The design of other contingency documents, such as powers of attorney, compulsory heirship rights and many other aspects, has to consider a disposition mortis causa. These few examples highlight the legal complexity of this topic.
The inheritance contract is a contractual form of disposition mortis causa, in which at least two contractual parties are involved. It requires notarization. Unlike the joint testament, even people who are not married to one another also conclude an inheritance contract. The inheritance contract is cheaper than a notarized joint testament, because it does not have to be taken into the special official custody of the probate court.
The disposition mortis causa arrangements laid down in an inheritance contract can generally only be changed with the agreement of both contractual parters, and after the death of one of the contractual parters not at all. In many cases, this restriction is a useful way to administer the inheritance as the deceased would have wanted. However, an inheritance contract can also provide for far-reaching unilateral changes in the instructions, if precisely such a restrictive effect is undesired. The inheritance contract is therefore an extremely flexible and individual personal instrument that can be used to tailor the succession optimally to meet the wishes of the testator.
Besides the appointment of heirs there are a number of structuring instruments. These are combined with the advisory and structuring services offered by the notary public so that your last will is optimally asserted in a way that is legally watertight.
If you intend that certain persons should not become heirs, but instead should only receive specific items from the estate, you can degree a legacy with regard to these items. Ownership of the bequeathed item does not transfer to the intended person immediately upon your death. Instead, the heir must release the item to the intended person.
EXECUTION OF A WILL
You can can order the execution of a will per disposition mortis causa. Unless otherwise specified, the executor of the will has the task of taking possession of the estate, executing your last will and testament and in the event of joint heirs engaging in any disputes among the heirs. Ordering the execution of a will makes sense in the case of largish assets or if it is likely that the heirs (because they are minors, inexperienced, or for medical reasons) would be overtaxed with the management of the estate.
APPOINTMENT OF A LEGAL GUARDIAN
Parents can appoint a legal guardian for their children in the event of their death. This too takes place via disposition mortis causa.