In German inheritance law, the term inheritance or estate refers to the entirety of the legal relationships which, in the event of inheritance, are transferred as a whole to one or more other persons (heirs).
The heir or the community of heirs is the universal successor of the testator (principle of universal succession , (1) BGB). The inheritance comprises the entire active and passive assets of the deceased and as such is the subject of the transfer of rights . Next to the property is by virtue of BGB and the possession of the heirs or transferred.
However, the heir is not obliged to accept the inheritance. Within six weeks of becoming aware of the inheritance, the heir can refuse the inheritance if he has not already declared acceptance of the inheritance (Section 1944 BGB). After the six weeks have elapsed (or when you apply for a certificate of inheritance ), the inheritance is accepted. The Erbausschlagung has personal statement to the probate court to be made or to before a notary which then forwards the declaration to the probate court. The right to reject does not apply after acceptance of the inheritance. In the event of erroneous acceptance, rejection or failure to meet the six-week deadline (= acceptance), the heir may under certain circumstances have the option of contesting the inheritance (in practice the most important case is misunderstanding that the estate is overindebted).
If the testator inherits individual items separately in his will, this is a legacy in the legal sense . If the considered is also to be responsible for the liabilities as heir , it is a matter of an inheritance at the fraction corresponding to the value of the thing with an anticipated division of the property.
The estate has no legal capacity in Germany , so it has no legal representatives. So he is not a legal subject , but a legal object . The curator of the estate is the legal representative of unknown heirs. So there can be no claims against the estate either, but only claims against the heir or a majority of heirs, which are referred to as estate liabilities .
The inheritance, as it is called in Germany, is in the Austrian inheritance as estate or probate referred. This is also made up of assets (e.g. property, claims for damages) and liabilities (e.g. loans, tax debts).
In Austria there are highly personal rights and obligations that cannot be inherited. These are therefore not part of the estate. For example, these are a prison sentence, a driver's license or the right to vote. An open loan is certainly inheritable, fines only in the event of a final judgment, but not in the case of ongoing proceedings.
There are three inheritance titles that entitle someone to inherit: the contract of inheritance, the will and the legal succession.
These three reasons for appeal are ranked according to “legal strength”; in practice, however, the frequency of legal succession dominates, as in many cases no will or inheritance contract is drawn up.
- Inheritance contract
This contract can only be concluded between spouses in the form of a notary for three quarters of the estate. The inheritance contract is binding and can only be changed or dissolved by mutual agreement. The rest of the quarter can be freely used; In the absence of a will, the legal succession comes into play over the part not regulated in the inheritance contract.
- Testamentary disposition
If the testator creates a valid will, the estate will be distributed to the heirs according to this. The compulsory portion must be taken into account. Those entitled to a compulsory portion (descendants, parents, spouses) must in any case receive a certain share from the deceased's estate. If a person entitled to a compulsory portion was not considered in the will, he has a monetary claim against the appointed heir.
The compulsory portion for spouses and children is 50% of the inheritance or one third for parents. The testator can freely determine the remaining inheritance.
The disinherited are not entitled to the compulsory portion, but (at least) one of the following specific reasons must exist:
- the testator was abandoned in an emergency;
- the affected heir was sentenced to life imprisonment or at least 20 years imprisonment for intent :
- Leading an immoral lifestyle;
- the conjugal duty of assistance was grossly neglected;
- Unworthiness of inheritance because of an act against the testator that is punishable by law and threatened with a prison sentence of more than one year
- other gross neglect of family duties;
- Prohibited influence (coercion, fraud) in the establishment of the will.
- Legal succession
This applies if the testator did not make a will, or did not make a will, or did not make a will over the entire estate.
If there is no or only an invalid will, the legal succession comes into force. If only part of the estate was disposed of in the will, or an inheritance contract was concluded and the remaining quarter was not certified, the remaining part will be divided according to the legal succession.
Legal heirs are persons who are closely related to the deceased person:
- The first line ( Parentel ) includes children of the deceased, as well as their children and grandchildren.
- The second line includes mother and father as well as their offspring.
- The third line includes grandparents as well as their children and grandchildren.
- The fourth line includes great-grandparents (but no longer their descendants).
If a person of the above-mentioned lines has already died, their descendants inherit exactly the part that this person would have received (representation).
- Reversal right
If neither the spouse, relatives nor anyone else who is entitled to inheritance can be found, the estate is thus heirless and falls to the state as a last resort .
United States of America
In the United States the estate goes ( Engl. Estate initially) to the "personal representative" personal legal successor of the deceased on the appointed by the testator, either in a will ( "executor") or who is appointed by the competent probate ( "Administrator"). The personal legal successor acquires fiduciary property rights to the entire estate, which only end when the dispute over the estate has been concluded. Up to this point in time, the heirs have no rights to the estate, only an entitlement .
All 50 US states have their own inheritance and probate laws.
- Marc Szydlik: Heirs in the Federal Republic of Germany. On the relationship between family solidarity and social inequality. In: Cologne journal for sociology and social psychology. 51, 1999, pp. 80-104.
- Stefan Perner , Martin Spitzer , Georg E. Kodek : Civil law. 4th edition. Manzsche publishing and university bookstore, Vienna 2014, ISBN 978-3-214-11254-7 .