As of: January 18, 2024, 7:13 p.m
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Inheriting is the same as bequeathing?
No!
What many people equate in language is, in legal terms, a world of difference.
Berlin - Two words that often mean the same thing for laypeople: bequeath and bequeath.
But from a legal point of view there are two fundamentally different terms behind it.
“The sole heir has a stronger position compared to the legatee,” says Ansgar Beckervordersandfort, notary and specialist lawyer in inheritance law.
According to the principle of universal legal succession, the assets of the testator, i.e. the deceased, are first transferred in their entirety to one or more heirs, explains Johannes Hochmuth, a specialist lawyer in inheritance law.
“With the death of the testator, the heir assumes all of the testator’s rights and obligations immediately.”
Seniors and children: That's the difference between inheriting and bequeathing.
© Marina Beilina/Imago
Heir also assumes debts of the deceased
This means that he takes on the legal position of the deceased one-to-one.
Real estate, accounts, shareholdings, but also liabilities and all contractual relationships pass to the heir the second of death.
However, the deceased can use a last will and testament, i.e. a will or an inheritance contract, to assign individual assets, such as a bank deposit or a piece of land, to a person other than the heir.
“The beneficiary, the so-called legatee, is then not a legal successor like the heir,” says Hochmuth.
However, he could demand that the heir hand over the item.
Because as a legatee, he only receives a contractual claim against the heir to transfer the item of the legacy, says Beckervordersandfort.
Legatee: Less powers, fewer obligations
The advantage of the heir: “As a universal successor, the heir automatically receives everything and only has to prove that he is the heir,” says Beckervordersandfort.
He can prove his heir position either through a certificate of inheritance or a notarial will with the opening minutes of the probate court.
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However, the position of heir could prove to be a disadvantage if there are several heirs.
In practice, such communities of heirs often turn out to be prone to disputes.
Before the individual heirs can freely dispose of their respective inheritance, the community of heirs must first be separated, says Beckervordersandfort.
Legatee: No immediate access to the estate
“The advantage of the legatee is that he can simply assert his claim against the heir or heirs without himself becoming a member of the community of heirs that is prone to disputes,” says Beckervordersandfort.
Unlike the heir, however, he does not have direct access to the legacy items and must first demand the return of the legacy item.
If the heir(s) do not fulfill this claim voluntarily, the legatee must sue the heir(s).
“In this respect, the legatee has a weaker position than the sole heir,” says Beckervordersandfort.
If the heir cannot fulfill the legacy because, for example, the bequeathed car has been destroyed or has already been sold, the legatee can claim damages, according to Hochmuth.
Only heirs are liable for estate liabilities
“From an economic point of view, being appointed as an heir [...] does not always have to mean a better position” compared to a legacy donation, says Hochmuth.
By arranging valuable legacies, the estate remaining to the heir could be completely used up.
In addition, unlike the heir, a legatee is not liable for any estate liabilities.
According to Hochmuth, there is no difference from a tax perspective.
“Everyone has to pay tax on the income they receive.”
In order to make it easier for the heir or heirs to process the estate and to prevent possible inheritance disputes, the testator can also order the execution of the will.
“The testator must name an executor in the will whose job it is to fulfill the legacy,” explains Hochmuth.
In this case, it is not the heir who takes possession of the estate items after the inheritance, but rather the executor.
Legatees can then contact him directly.
Will: Wording must be clear
When drawing up a will, testators should remember that under German law there must always be at least one heir.
“The circle of heirs should be kept as small as possible in order to keep the potential for conflict as low as possible,” says Beckervordersandfort.
If several people are to be remembered, it may make sense to leave bequests of specific items or amounts of money for them.
“It is important that clear wording is chosen,” says Beckervordersandfort.
For example: “My friend Max Mustermann will be my sole heir.
My neighbor Maximiliane Musterfrau will receive my VW Golf car, with the registration number XY, and 10,000 euros as a bequest.”
In addition, the testator can formulate conditions in his will - both for the appointment of an heir and for the gift of a legacy.
“All conditions that do not violate common decency are permissible,” says Hochmuth.
It is possible, for example, to set a deadline for the heir to fulfill the legacy or transfer an apartment to the legatee.
“If the heir does not comply with this condition, he loses his heir status.”
(dpa/row)