Disabled Will

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In the specialist legal literature, a will for the disabled is understood to be a will , which is drawn up in particular by parents of disabled children and which contains special rules with regard to the disabled child. The aim of this disposition is to obtain full state support for the heir despite his inheritance, without the inherited assets having to be used for this purpose. The legal way to do this lies in the arrangement of a subsequent inheritance with simultaneous execution of the will .

description

People with disabilities often receive social benefits that are income and wealth-related (e.g. integration assistance for disabled people ). Inherits the beneficiary assets that the amounts of early assets exceeding of mostly 5,000 euros, which shall expire for the purchase of asset-based social services. Only when the inherited assets have been used up to the amount of the protective assets can social assistance benefits be drawn again.

In order to avoid such a situation, the testamentary arrangement of the preliminary inheritance is usually recommended. Here the disabled person is only used as a previous heir and other people as subsequent heirs . On the one hand, this is based on the fact that the non-exempt previous inheritance is limited in his right of disposal over estate objects , in particular real estate, under German inheritance law (§ § 2112 ff. BGB ) .

In order to enable donations from the inheritance to the previous heir and to prevent the handicapped person from having direct attachable access to the estate, the parents must also appoint a permanent executor. This executor then takes care of the disabled person and gives him something from the inheritance. The cases in which the executor has access to the inheritance should also be legally determined by naming various occasions and opportunities: birthdays, trips or hobbies. It is important for the functioning of this legal structure that the allowances granted by the executor from the estate always only concern objects of the protective assets of the disabled person in accordance with social law provisions.

The social welfare institution is prevented from accessing the estate because, on the one hand, the disabled person is only a previous heir and, on the other hand, the benefits granted to him may not be affected under social law. For a long time it was controversial in the legal discussion whether this construction was not simply immoral or whether it violates the principle of subsidiarity in welfare state benefits , because the need of the disabled is generated constructively and, despite the existence of private assets, as far as possible, benefits from the general public are "taken away" “ Should be.

The Federal Court has found in 1993 in a landmark decision that a testamentary disposition, with the parents their disabled, housed at the expense of social welfare child only as provisional heir to a the compulsory portion used barely exceeding inheritance, when he died another child as heir and determine this to be the full heir of the remaining estate as well , does not violate Section 138 (1) BGB, i.e. is not immoral , even if the social welfare institution does not receive reimbursement of costs as a result.

The BGH has confirmed this case law in a further ruling and also stated that the waiver of a disabled child from the compulsory portion to which he is entitled in the event of disinheritance is not immoral and that such an inheritance law cannot be successfully attacked by the social welfare institution.

If there is an inheritance dispute between previous and subsequent heirs and a supplementary supervisor is appointed, his remuneration must be disputed from the estate despite the will of the handicapped.

See also

literature

  • Ruby, Schindler: The Disabled Will . 4th edition, zerb Verlag, 2018, ISBN 978-3-935079-77-8 .
  • Bundesvereinigung Lebenshilfe eV: Wills in favor of people with intellectual disabilities. 2., through Edition. Lebenshilfe-Verlag, Marburg 1995, ISBN 3-88617-122-1 .
  • Geyer: The Disabled Will - Effects on Legal Care; BtPrax 2016, p. 176
  • Kornexl: Estate planning for problem children . ZAP Verlag for legal and legal practice, 2006, ISBN 3-89655-218-X .
  • Ruby: The Disabled Will: Common Mistakes and Practice. In: Journal for Inheritance Law and Property Succession . (ZEV) 2006, p. 66.
  • Hans-Helmut Fensterer: The will in favor of disabled and needy people . VSRW-Verlag Bonn, Bonn 2008, ISBN 978-3-936623-34-5 .
  • Meinrad Dreher , André Görner: The handicapped will and § 138 BGB. In: NJW . 25/2011, p. 1761.
  • Florian Dietz, Lorenz Spall: The handicapped will in execution: First steps after the inheritance. In: Journal for Inheritance Law and Property Succession. (ZEV) 2012, 9, pp. 456-461.

Web links

Individual evidence

  1. ↑ BGH, ruling v. October 20, 1993 - IV ZR 231/92; # NJW 1994, 248 = MDR 1994, 591 = FamRZ 1994, 162; http://www.erbfall.eu/2010/11/01/behindestentestament/
  2. ↑ BGH, ruling v. January 19, 2011 - IV ZR 7/10; NJW 2011, 1586 = MDR 2011, 303 = DNotZ 2011, 381 = FamRZ 2011, 472; http://lexetius.com/2011.98
  3. ^ BGH, March 27, 2013, AZ XII ZB 679/11