legacy
A legacy under inheritance law (also legacy , from the Latin legatum ) is the granting of a certain pecuniary advantage based on a will or inheritance contract , without the person who is entitled to the legacy (the legatee or legatee ) being appointed as heir. The legatee does not acquire the object in question immediately upon the death of the testator. He only has a claim against the heir or heirs who have been burdened with the legacy.
German law
The legal regulations of the legacy can be found in German law in §§ 2147 ff. Of the German Civil Code (BGB).
Legal nature
In accordance with Section 1939 of the German Civil Code, the legacy consists of the granting of a pecuniary advantage through a will without appointing the intended heir.
The subject of a legacy can be the donation of any kind of assets, such as the transfer of ownership of certain things , the payment of a sum of money or the granting of rights such as rights of residence or usufruct .
However, in the case of a legacy, the recipient does not acquire the inherited asset advantage by himself ( German law does not recognize such a so-called vindication legacy ). Rather, the considerate acquires only a contractual right to procure what is intended (so-called damnationslegat ), i.e. the right to demand the fulfillment of this claim from the person burdened with the legacy ( § 2174 BGB).
The person who, according to the will of the testator, is supposed to fulfill the legatee's claim from the estate, i.e. usually the heir or several heirs, is burdened with the legacy. However, another legatee can also be burdened with a legacy (so - called sub- legacy ) (Section 2147 BGB).
Because the legacy only establishes a claim that must first be met by the person complained about, it differs from the appointment of an heir, in which upon the death of the testator, his assets automatically pass to the heir or a majority of heirs (so-called universal succession ).
The legacy must also be distinguished from the edition . With a condition, the heir or legatee is obliged to provide a service, such as looking after graves or pets after the death of the testator. Certain provisions applicable to the legacy are applicable accordingly ( Section 2192 BGB).
Availability and content
It is not necessary to use certain words in the will or in the inheritance contract to suspend a legacy . According to the rule of interpretation contained in Section 2087 (2) of the German Civil Code ( BGB) , the allocation of only individual items, in case of doubt, constitutes a legacy. For example, if the testator decrees: "My friend receives my hunting rifle ..., everything else I own I will bequeath to my son", the son is the heir and the friend is legatee. This means that with the death of the testator, the son moves into all property positions of the same, while the friend, on the other hand, has a claim against the son as heir to obtain ownership of the gun and to surrender it. In practice, the will of the testator can often only be explored through interpretation .
Special forms of legacy
Surrogate legacy
In the event that the intended person is no longer alive when the inheritance occurs, the testator can order a substitute legacy, Section 2190 of the German Civil Code .
Legacy
A subsequent legacy exists when the testator has appointed a previous legatee and a subsequent legatee. The subsequent legatee should then be able to claim the item from the previous legatee after an event has occurred.
Legacy
In the case of a bequest , the testator's disposition is directed towards an object that does not belong to the estate . The person burdened with the legacy must then acquire the item with funds from the estate and provide it to the legatee. However, § 2169 BGB must be observed, according to which a legacy is generally ineffective if it relates to an object that does not belong to the estate. A bequest may therefore only be accepted if it is certain that the testator still wanted to turn the object.
Pre-legacy
With the advance legacy ( § 2150 BGB ), the legacy is assigned to a (co-) heir himself, ie he is both heir and legatee. He receives a certain item from the estate without counting it against his inheritance. In practice, it is always difficult to separate the prior legacy from the division arrangement . There is an obligation to compensate the co-heirs with the division order, but not with the prior legacy. Misunderstandings arise especially with self-written wills due to the unclear and contradicting formulations in the BGB : Thus, in § 1939 the legacy is defined as a donation "without inserting him [the beneficiary] as an heir", while § 2150 follows that legacies are also in favor of Heirs are possible, then just prior legacies.
In the case of the ruling “My son A will receive my share portfolio, my sons A and B will receive the remaining assets in equal parts”, it remains unclear whether the testator wanted to favor A (then advance legacy) or seek compensation for the share portfolio (then division order ). According to the jurisprudence, the prior legacy is regularly to be satisfied prior to the inheritance dispute.
Universal legacy
A universal legacy exists if the testator donates the entire inheritance to a third party by means of a legacy and has made it clear that the interpretation rule of Section 2087 BGB should not apply. Main article: Universal Fideikommiss
Assignment
Since the legacy is a contractual obligation, it is subject to the general rules of assignment .
Islamic law
In Islamic law , which is used in most Islamic countries, there is the institution of the testamentary legacy ( waṣīya ). This legacy may not exceed one third of the assets (after deduction of funeral costs and debts), unless the legal heirs, who are entitled to certain compulsory portions ( farāʾiḍ ), consent. The question of whether bequests to legal heirs are permissible is assessed differently in the various schools of Islamic law . They are allowed in most Islamic countries today. While Muslims and non-Muslims are not mutually entitled to inheritance under Islamic law, the legacy of a Muslim is effective in favor of a non-Muslim. This is a starting point for individual solutions in interfaith marriages . The suspension of a legacy is generally recommended according to Islamic norms .
Web links
- Testamentary orders of the testator - legacy, §§ 1939, 2147 ff. Juracademy, accessed on May 2, 2018
Individual evidence
- ↑ What is a legacy and how is it regulated? Süddeutsche Zeitung , February 8, 2018
- ↑ Bernhard F. Klinger: Testament Guide for Legacy and Edition Retrieved on May 2, 2018
- ↑ Legacy and Legacy: What's the Difference? anwalt.org, accessed May 2, 2018
- ↑ Bernhard F. Klinger: Testament Guide for Legacy and Edition Retrieved on May 2, 2018
- ↑ Saarland OLG, judgment of July 12, 2007 - 8 U 515/06
- ↑ cf. Hans-Georg Ebert: tendencies of legal development , in: Werner Ende, Udo Steinbach (Hrsg.): Islam in the present . 5. updated and exp. Edition CH Beck, Munich, 2005. p. 223
- ↑ cf. Mathias Rohe : Islamic law. History and present. 2nd Edition. Munich 2009. p. 100
- ↑ See e.g. B. ʿAbd al-Wahhāb al-Baghdādī: Kitāb at-Talqīn fī l-fiqh al-mālikī . Ed. Zakarīyā ʿUmairāt. Dār al-kutub al-ʿilmīya, Beirut, 1999. p. 152.
