Anticipated Succession
The anticipated succession is a transaction between living persons, usually in the form of an at least partially free of charge donation in which a later deceased one or more potential heir already turns lifetime assets. The anticipated succession avoids the strict (error-prone) formal requirements of the will , the transfer of assets - unlike in the inheritance contract - does not only take place in the case of inheritance and the person disposing of them can stipulate certain considerations for his donation, which will still benefit him during his lifetime, such as the lifelong right of use a transferred property, an ongoing pension payment to secure his standard of living or a care obligation. In addition, the anticipated succession can be advantageous for tax purposes .
Germany
The Federal Court of Justice understands the term “ anticipated succession” to mean “the transfer of property (or a substantial part of it) by the (future) testator to one or more recipients envisaged as (future) heirs .” The law uses the pair of terms “ anticipated inheritance” to numerous Positions, for example in § 593a S. 1 BGB , § 17 HöfeO , § 35 Abs. 1 Nr. 2 BauGB . The main purpose of anticipated succession is generational succession.
The lifelong allocation of assets can have different reasons. The occasion can be a marriage, for example, so that the donation is made as a dowry . A marriage-related allowance is also conceivable . A possible consideration is a waiver of inheritance or certain severance payments and compensation payments made by the intended heirs to the later heirs ( collation obligation ).
In the case of contracts between parents and their underage children, which are not "only legally advantageous" for the child ( Section 107 BGB), such as a donation, but rather oblige the underage to provide a consideration, the child must be represented by a supplementary carer ( Section 1909 BGB ) required. The family court appoints this upon application .
The “archetype” of the contract on anticipated succession is the handover of the farm according to the farm rules in the agricultural sector. In this, the next generation takes over the management of the farm. The parents' generation is usually covered by a senior part (cf. Art. 96 EGBGB ).
Austria
In Austria, a precautionary transfer of assets is possible during one's lifetime in the form of an advance receipt .
Switzerland
The advance withdrawal of inheritance under Swiss law is a lifelong donation of an asset to a presumed future heir with credit towards his inheritance.
The advance withdrawal is similar to the donation with the difference that the inheritance drawer has to repay the amount when the deceased dies or is offset against his inheritance (so-called adjustment, Art. 626 ff. ZGB ; see also collation ).
If a gift has been made less than five years ago since the giver's death, it is also to be regarded as an advance withdrawal and to be repaid.
Depending on whether or not credit towards the future inheritance is agreed, it is legally an advance withdrawal or donation.
It should be noted that there can be cantonal differences.
See also
literature
- Philipp von Hoyenberg : Anticipated succession (law, taxes, forms). Verlag C. H. Beck, 2010, ISBN 978-3-406-57336-1 .
Individual evidence
- ↑ BGH DNotZ 1992, 33
- ↑ Werner Schulz: Reimbursement of donations ( Memento of the original from May 13, 2015 in the Internet Archive ) Info: The archive link was inserted automatically and has not yet been checked. Please check the original and archive link according to the instructions and then remove this notice. justiz.bayern.de
- ↑ Donation / transfer of assets during lifetime . Information portal of the Federal Chancellery , HELP.gv.at
- ↑ Information on advance withdrawal / advance receipt of inheritance in Switzerland
- ↑ Credit in the future estate, ZGB Art. 626
