Succession
When Erbausschlagung is an explicit declaration, an inheritance and not to assume all rights and obligations thereunder.
In contrast to contracts, the inheritance is automatically transferred to the heir under German law ( self- acquisition ). This means that one becomes an heir without the need for an explicit declaration from the heir. In this case, not only do you get the deceased's property, you also have to pay for the debts. However, this can be avoided by rejecting the inheritance.
Reasons for succession
An heir receives (unless the testator has ordered otherwise) the entire property of the testator, but must also settle all of his liabilities ( Section 1967 BGB). The property includes all objects, securities and accounts in the name of the testator. The estate liabilities include the funeral costs, but also all other debts that the testator has on the day of his death (loans, maintenance arrears, account overdraft, etc.). There are possibilities to limit liability to the amount of the estate (for example estate administration , estate bankruptcy ); but if the testator was clearly over-indebted, a succession is the clear alternative.
Although the estate's over-indebtedness is usually the reason for a discount, this is not necessary. Sometimes rashes are also purely personal because you don't want to have anything to do with the deceased and his or her affairs. However, restrictions apply to guardians and supervisors (see below).
It can also make sense for inheritance tax reasons. In certain cases, a succession z. B. a larger volume of exemptions, the reduction of the inheritance tax progression, the reduction of the tax base or the securing of a more favorable tax bracket.
Shape of the rash
If you do not want to inherit, you have to expressly declare this to the probate court . The declaration must be given in form ( Section 1945 BGB ). It can either be put on record and certified by the probate court or submitted in a publicly certified form ( Section 129 BGB). Another option is to have a notary's declaration on record , who will also forward this to the probate court. The locally competent probate court is basically the district court in whose district the deceased last had his place of residence , § 343 FamFG ; z. In some cases, different competences apply, according to the new regulations of the FamFG, the probate court in whose district the deciding party is domiciled is also responsible. This then has to forward the declaration to the competent probate court ( § 344 Abs. 7 FamFG). This new regulation represents a considerable relief because it reduces the risk of missing the deadline. If the heir is abroad, the declaration can be submitted to the German diplomatic mission abroad .
Rejection deadline
A succession must be submitted to the responsible probate court within six weeks (from knowledge of the inheritance, the reason for the appeal and any complaints) ( § 1944 BGB). It requires a signature certification and can only be submitted before a notary or the competent probate court. The deadline is also met when submitting the declaration to the probate court of the place of residence of the declining party (Section 344 (7) FamFG). If the deceased was last resident outside of the Federal Republic of Germany, or if the heir was abroad at the time he became aware of the inheritance, the deadline is six months ( Section 1944 (3) BGB). There are costs for the submission of the declaration or authentication of the signature and the receipt by the probate court ( Section 103 (1) GNotKG).
In the case of an inheritance based on willful succession ( will , inheritance contract ), the period does not begin before the probate court has opened the will.
The deadline-inhibiting provisions § 206 BGB ( force majeure ) and § 210 BGB ( legal incapacity ) also apply in the event of a succession.
The rejection of a legacy is not subject to a time limit. § 2180 BGB does not provide a deadline for rejecting a legacy. The regulation of § 1944 BGB, according to which the disclaimer can only take place within six weeks, does not apply to the legacy, since it is not referred to in § 2180 Paragraph 3 BGB. An analogous application of § 1944 BGB is rejected by the Federal Court of Justice. According to § 2180 Paragraph 1 BGB, a rejection is only possible if the legacy has not already been accepted. In addition, if the legatee is also a person entitled to a compulsory portion, the heir can set a reasonable deadline for the declaration of acceptance of the legacy in accordance with Section 2307 (2) BGB. With the expiry of the period, the legacy is deemed to have been rejected, unless acceptance is previously declared.
Consequences of the rash
If an heir rejects the inheritance, it automatically passes to the next beneficiary (more precisely: to the one who would have inherited if the deciding heir had not lived, § 1953 BGB). This can of course also turn down the inheritance. If there are no other beneficiaries, the inheritance falls to the state (so-called state inheritance law ).
Under Liechtenstein inheritance law , a waiver of inheritance usually means that the descendants of the deciding person do not inherit anything.
Rash for children
A person who has custody of underage children can declare the disclaimer for those children as well. If both parents have custody, both parents must turn down on behalf of the child. Under certain circumstances, permission from the family court is required ( Section 1643, Paragraph 2 of the German Civil Code).
Guardian and guardian
A guardian , caregiver or supervisor needs the family court or care judicial authorization ( § 1822 BGB). The time it takes for the court to rule on the application for approval does not count towards the six-week period. Rather, the expiry of the deadline is inhibited during this time ( Section 206 BGB). The suspension of the period begins with the receipt of the application by the court and ends with the legal force (§ 40 FamFG) after delivery of the approval decision ( § 287 FamFG).
Jurisprudence: For the rejection of an inheritance: The rejection of a valuable part of the inheritance by the custodian that has accrued to a person in custody can usually not be approved by the court ( §§ 1908i, 1822 No. 2 and §§ 1942 ff. BGB). This is especially true if this prevents access by the social welfare agency.
Challenging the disclaimer
In principle, the disclaimer is irrevocable. If previously unknown assets emerge after the succession, the succession can be contested within six weeks of the reasons becoming known and thus the inheritance can be commenced ( § 1954 BGB), if the refusal was given stating the reason for overindebtedness. However, the jurisprudence places certain requirements on the investigation of the heir prior to rejection. The same applies to the form of challenge as above. In accordance with Section 1956 of the German Civil Code (BGB), failure to meet the disclaimer deadline can also be contested. This can be done in the same way as challenging the acceptance.
Public notice procedure
The public notice procedure enables the heir to determine whether the estate is overindebted. After accepting the inheritance, heirs are entitled to apply to the appropriate probate court for public notice. After the written application has been approved, the court will request the respective creditors of the estate to register their claims within a certain period of time. If the notice period has expired, the judge announces an exclusion judgment in which the properly registered claims are reserved and the others are excluded. If a creditor has missed this deadline, his claim does not expire completely, but is only taken into account last, provided that inheritance is still available for repayment. If the inheritance is used up, the surviving dependents do not have to fear that they will be held accountable with their private assets. Instead, the heir can raise the "plea of exhaustion of the estate" against other creditors. So he claims that the estate has already been exhausted by the satisfaction of other creditors.
literature
- Matthias Kiunke: The limitation of the disclaimer to the willed inheritance according to Section 1948 (1) BGB Shaker, Aachen 2006, ISBN 3-8322-4728-9
- Walter: acceptance and rejection of an inheritance; ZEV 2008, 319
Individual evidence
- ^ Moench / Hübner in inheritance tax law 3rd edition 2012; Marg. 326 ff.
- ↑ general opinion, cf. z. B. BayObLG BtPrax 1998, 76; Saarbrücken Higher Regional Court decision of February 17, 2011, 5 W 245 / 10-91, Rpfleger 2011, 607 = ZErb 2011, 246; Higher Regional Court Brandenburg, decision of April 22, 2014 - 3 W 13/14, FamRZ 2015, 696
- ↑ Further case law at https://www.bundesanzeiger-verlag.de/betreuung/wiki/Erbausschlagung
- ↑ OLG Stuttgart decision of June 25, 2001 - 8 W 494/99, NJW 2001, 3484 = BtPrax 2001, 255 = FGPrax 2001, 199, also OLG Hamm, decision of July 16, 2009, 15 Wx 85/09, BtPrax 2009 , 302 = NJW 2010, 689 (Ls.) = NJW-RR 2010, 83 = FGPrax 2009, 265
