Post-heir is someone who is appointed to heir in such a way that he only becomes an heir after another heir has first become. Subsequent inheritance is only given to someone who is determined to do so by a death disposition . In the way of legal succession, there is no pre- and post-inheritance.
An example is the decree "My daughter should be the heiress, after her death the inheritance should go to her children."
In Roman law , the principle was semel heres semper heres (“once inheritance, always inheritance”). The instrument of the Universal Fideikommiss was used to regulate the succession beyond the death of the first deceased .
The subsequent inheritance ( BGB) in German inheritance law only receives the inheritance with the event to which the subsequent inheritance is linked ( subsequent inheritance ), e.g. B. remarriage or the death of the previous heir, forfeiture etc. Before that, he has a hereditary and transferable expectancy right , unless the testator has determined otherwise. The right of the subsequent heir to this inheritance is secured by restrictions on the right of disposal of the previous heir over certain objects of the estate (e.g. rights to properties by means of a post- heir note in the land register ), prohibition of gifts from the estate and the obligation of the previous heir to proper administration (§ bis , BGB), unless the testator has exempted the previous heir from restrictions by disposition of death (exempted previous inheritance, BGB). The previous heir must preserve the substance of the inheritance and may only use the proceeds for himself.
If the previous heir has inheritance items in return for payment, the remuneration (e.g. the price received) is part of the inheritance ( surrogation , BGB). If the previous heir violates his obligations to the detriment of the subsequent heir, he makes himself liable for damages to the latter. However, the previous heir is only responsible for the care that he is used to in his own affairs ( BGB).
30 years after the inheritance, the rights of the subsequent heir to the estate expire and the previous heir acquires the unrestricted right of inheritance, he becomes a "full heir". Exceptions to this rule can be found inBGB. In practice, however, these exceptions are more the rule than the exception. Because according to BGB, the death of the previous heir is considered to be an event with which the successor succession is to occur, and this is exactly what is covered by the exceptions. Significant practice-relevant cases that are not generally covered by the exceptions include: a. Events that are not in the person of the previous heir (e.g. occurrence of a state of defense) and the previous inheritance by legal persons.
The previous inheritance bears the "normal maintenance costs " of the inheritance (BGB, for example the maintenance of houses). The subsequent inheritance bears the "extraordinary burdens" ( BGB, for example investments that lead to an increase in value).
If the previous heir and the subsequent heir are both children of the testator, the subsequent heir receives no entitlement to a compulsory portion because only the person who is excluded from the succession by disposition of death or who has rejected the inheritance receives a compulsory portion. However, since the subsequent heir is also a “real” heir, he is not entitled to a compulsory share. However, if he rejects the inheritance, he is entitled to the statutory compulsory portion.
The subsequent heir is the inheritance of the testator and not of the previous heir. The latter can therefore not withdraw his inheritance by will . The other only applies if the subsequent heir is appointed by the testator on the condition that the previous heir does not have anything else. In the case of the Berlin Testament , pre- and post-inheritance is not wanted in case of doubt.
Although the subsequent heir is not the heir of the previous heir, but of the testator, the previous and subsequent inheritance is assessed in terms of tax law as if there were two inheritance transactions.
According to § 771 ZPO and § 2115 BGB, creditors of the previous heir have no way of accessing the substance of the inheritance if the previous heir goes bankrupt. It is also not taken into account for social benefits. If access is to be denied not only to the substance of the property, but also to its income, this can be achieved by ordering a permanent execution of the will ( disabled will ).
Noble houses use the after-inheritance to regulate the succession over generations in such a way as the house law prescribes.
Subsequent inheritance in Austrian law is regulated in Sections 604, 608 and 609 ABGB .
The subsequent heir receives the assets after the first appointed heir. This may use assets, but not consume them. ( Fideikommissar substitution , § 608 ABGB). Another form is the subsequent inheritance on the remnant , in which the first appointed heir is allowed to use the assets (but not fraudulently , § 609 ABGB).
Before and after inheritance are regulated in Art. 488 ff. Of the Swiss Civil Code. The objects and values of the previous heir must remain distinguishable from the remaining assets of the previous heir, therefore, according to Art. 490, Paragraph 1 of the Civil Code, the recording of a post-inheritance inventory is mandatory. This inventory is arranged when the will is opened. According to Art. 490, Paragraph 2 of the Civil Code, the previous heir is obliged to provide the subsequent heir with security so that the inheritance can actually be delivered in the event of the subsequent inheritance. The testator can, however, release him from this obligation in the will. If the previous heir is unable to provide the security, the official inheritance administration must be ordered.
- Martin Avenarius : Interpretation of wills and "case groups of typical situations" in the arrangement of successor and succession . NJW 1997, 2740.
- Wurm, Wagner, Zartmann: The legal form book , 17th edition 2015, Verlag Dr. Otto Schmidt , chap. 84. ISBN 978-3-504-07023-6 .
- Gerhard Slabon: Using the instrument of pre- and post-inheritance correctly: Five typical areas of application November 15, 2012
- OLG Hamm, decision of July 18, 2013 - Az. 15 W 88/13 to differentiate the substitute heir from the subsequent heir.
- Jan Winzen: OLG Hamm: Delimitation of replacement inheritance vs. Subsequent inheritance according to the testator's will to OLG Hamm, decision of July 18, 2013 - Az. 15 W 88/13, September 17, 2013.
- Subsequent inheritance according to the old farm regulations Land & Forst, November 26, 2013 to the decision of the OLG Hamm of October 11, 2013 - Az. 10 W 26/13.
- Barbara Moormann: Dispute of the day: When previous heirs fritter away the legacy . In: Handelsblatt , September 19, 2011.
- Gerhard Ruby: Inheritance tax for pre- and post-inheritance .
- Replacement inheritance and subsequent inheritance. help.gv.at , accessed on March 16, 2016.
- BVerfG, decision of March 22, 2004 - 1 BvR 2248/01 on the succession to the former Crown Prince Wilhelm of Prussia, who died in 1951, the eldest son of the former Emperor Wilhelm II, who died in 1941.
- Pre- and post-inheritance website of the Zurich courts, accessed on March 16, 2016