Estate bankruptcy proceedings
In German insolvency law, the estate insolvency procedure represents a special type of insolvency procedure in addition to the collective property insolvency .
The estate insolvency proceedings ensure that the creditors of the estate are satisfied jointly and evenly from the estate and at the same time the heirs are no longer liable with their entire assets ( estate plus personal assets ), but only to a limited extent with the estate. This is done by separating the estate from the so-called personal assets of the heirs through the opening of the estate insolvency proceedings.
regulation
The Insolvency Code (InsO) stipulates that in addition to the standard insolvency proceedings, a special type of procedure can also be opened as an estate insolvency ( Section 11 (2), Sections 315 to 334 InsO ). One speaks here of special insolvency proceedings or of particular bankruptcy. While the principle of universal insolvency applies in normal insolvency proceedings, according to which the entire assets of the debtor are liable, in inheritance insolvency proceedings only the estate is liable as special assets or particular assets of the heirs who also have their own assets. If not only the estate but also the personal property of a co-heir is overindebted (for other reasons), another standard insolvency procedure could also be opened for the personal property.
Purposes
The purpose of the estate insolvency is the segregation or separation of the estate (inherited property) from the personal property of the heir (e.g. house and money that he owned as his own before the death). This segregation of property, so-called separation, also means that the heir is only liable for debts of the testator (and, in principle, all other estate liabilities) with the estate, i.e. limited ( Section 1975 BGB ). At the same time, the estate insolvency ensures the exclusive use of the insolvency estate to satisfy the estate creditors ( Section 325 InsO).
Jurisdiction
The bankruptcy court in whose district the testator had his general place of jurisdiction at the time of his death is responsible ( Section 325 InsO in conjunction with Sections 12 et seqq . Of the Code of Civil Procedure (ZPO) ).
Bankruptcy debtor
According to the prevailing opinion, the role of the insolvency debtor falls to the heir (s) as the bearer of the estate. However, the careful separation of the heir's own property from the property belonging to the estate must be observed. The heir's own property does not become part of the bankruptcy estate, even if parts of the literature view the heir as the bankruptcy debtor. According to a more recent view in the literature, there is no debtor in the estate insolvency proceedings. Rather, the provisions of general insolvency law that use the term debtor must be interpreted either in relation to a special fund or in relation to a person who is called to undertake legal acts in relation to the special fund.
Request
The estate insolvency proceedings can only be opened upon application to the insolvency court ( § 317 to § 319 InsO). According to § 1980 BGB, the heir has an obligation to submit an application if he realizes that the estate is insolvent or overindebted. If the heir does not comply with his obligation to apply in good time, he is liable to the insolvency creditors in accordance with Section 1980 BGB if they suffer damage as a result of the late filing of the application. The creditors of the estate within the meaning of Section 325 InsO are also entitled to apply .
Reasons for opening
The reasons for opening are insolvency and over-indebtedness . However, the opening reasons in the estate insolvency proceedings raise questions of doubt in many respects and are to be assessed differently from the standard insolvency proceedings. Only the heirs can apply for bankruptcy even if there is only a threat of insolvency ( Section 320 InsO).
Bankruptcy estate
The bankruptcy estate includes the estate at the time of the opening proceedings , i.e. not the inheritance . The insolvency estate but also includes claims for compensation against the heirs , executors , administrator of the estate , executor, etc. claims against the heirs may in particular result from its actions in the time between the succession and the company filed for insolvency. Particularly relevant here are the provisions of §§ 1975 ff. BGB .
literature
- Jan Roth, Jürgen Pfeuffer: Practical manual for estate insolvency proceedings . De Gruyter, Berlin et al. 2009, ISBN 978-3-89949-691-8 , ( de Gruyter manual ).
- Jan Roth: The reasons for opening the estate insolvency proceedings . In: ZInsO - magazine for entire insolvency law 14, 2009, ISSN 1615-8032 , pp. 2265-2271.
- Gerhard Ruby: The inheritance liability . German Forum for Inheritance Law , Munich 2001, ISBN 3-933320-11-9 , ( Series of publications by the German Forum for Inheritance Law eV 9).
