Heirs in the Million Trap!
These pitfalls lurk in the will - Munich lawyer explains the most common mistakes
Created: 2022-01-20 17:12
By: Andreas Thieme
If you buy a property without a marriage certificate, you have to plan well.
A will makes sense, otherwise the legal succession applies.
© Christin Klose/dpa-tmn
Arranging your inheritance after your death is one of the most important tasks in life.
But only one in five has made provisions - which often leads to quarrels in the family.
A Munich lawyer specializing in inheritance law explains what to look out for in a will.
Munich - There is no legal obligation to create a will.
But arguments often arise when there is none.
If the document is missing, the legal succession applies.
For example, if the father dies: Then
the wife has to come to an agreement with the children.
"They are each entitled to so-called inheritance quotas: the woman usually 50 percent - if there are two children, they are each entitled to 25 percent," says Philipp Pfab, a specialist lawyer for inheritance law in Munich.
In this constellation, the widow and children form a community of heirs.
Pfab explains: "This is sometimes unfortunate if there is only one property that is shared: For example, if the wife wants to stay in the house, but the children want to sell the property because they want to see money." If the surviving relatives do not agree, it will be auctioned off in case of doubt.
The pitfalls in the will: It is often about formal errors
A pen, a piece of paper.
That's all it takes to write a will.
But it has to be handwritten.
With date and signature - especially on the last page.
"It's not enough to sign a printed Word document," says Pfab.
No one else is allowed to write the will either.
If a lawyer prepares a draft, the testator must copy and sign it by hand.
In the case of joint wills by married couples, it is sufficient if one person writes the text and then both sign the will.
Problem #2: Making the will too late
This becomes a problem in the case of dementia.
Because the testator must be able to understand what
he stipulates in the will - in its form and scope.
"Otherwise his willingness to testify can be questioned by the heirs," says Pfab.
If they sue successfully, the statutory succession applies.
It also becomes a problem if the deceased suddenly falls ill and dies.
"Legally, his wife and daughter inherit from his first marriage - they never liked each other, but then have to agree on a property because the man didn't put it in his will.
He had always put off dealing with his own estate – later, due to illness, he was no longer able to do so,” says Pfab.
Problem #3: The heirs are unclear
A will regulates the last will and appoints the heirs.
Stupid only if it is unclear who is meant.
"Everything to Anna" is considered a will - if it is clear who Anna is.
Inheritance lawyer Pfab recommends specific formulations: "My niece Anna will be the sole heir." Caution: "I bequeath" should not be written.
Because a legacy - around 20,000 euros to the animal protection association - first goes into the pot of the heir, who then has to hand over the legacy.
Problem #4: The grammar is wrong
"Anna doesn't inherit, but Berta does." Or: "Anna inherits, but not Berta." Here the comma decides who inherits and who doesn't.
Curious: If the author does not put a comma at all, the main heir is unclear.
Then the probate court must determine what the testator wanted.
"I know of cases where there were five different views from the family," said Pfab.
In case of doubt, the law then regulates the successor.
Problem No. 5: Technical terms are mixed up
Just google it and then test it – not a good idea. Because laypeople make mistakes with technical terms. Full heir, preliminary heir, substitute heir, subsequent heir, final heir: "If the will does not specify who is meant or the wording is not legally appropriate, you have a problem," says Pfab. Example: A man appoints his wife to be the heir to his house and his child to be the heir. Means: If he dies, the woman inherits; when she dies, the child. As a consequence, the widow can no longer decide freely if she starts a new family - she is bound by the will of the man, who awards the inheritance to the child after the woman's death. The wife can use the house for life - but not sell it. A dramatic difference. "That's why I warn
against forms from the Internet," says Pfab.
Problem No. 6: Information is unclear
“My inheritance is given to the one who cared for me at the end of my life until I die.” The heir is not named here and several people are sometimes possible.
"Many court decisions revolve around whether the expressed will of the testator can be effectively determined or not," says Pfab.
The example also does not clarify the scope and duration of care.
Problem #7: The substitute heir is missing
A father makes his daughter the sole heir.
But what if she dies too?
This should be taken into account in the father's will by naming a substitute heir.
For example, the husband or the children of the daughter.
Otherwise the legal succession applies.
A successor should also be named in the event that the daughter refuses the inheritance.
"A will requires foresight here, says Pfab.
Problem No. 8: Not considering the mandatory part
Spouses and descendants are protected under inheritance law.
So if the father disinherits his wife and children and inherits everything to a friend, the family initially gets nothing.
To protect them, there is a compulsory portion – here in the amount of half of the statutory inheritance entitlement, i.e. 12.5 percent each.
Means: wife and child can demand a payment from the buddy.
Each child gets a share of 12.5 percent: with a house and property valued at 400,000 euros, every 50,000 euros.
This constellation often leads to the forced sale of the house, because the heir would otherwise not be able to pay out those entitled to a compulsory portion.
