Draw up a will - protect your last wishes

You would like to Create a will and organise your estate in a legally secure manner? A will is the most important instrument for bindingly defining your last wishes. Without a will, the legal order of succession applies - and this rarely corresponds exactly to what the testator had in mind. Lawyer Martin Reichelt in Dresden advises you on the legally compliant drafting of your will and helps you to avoid typical mistakes.

Why a will is important

Without a will, the law determines who inherits - and in what proportions. This can have undesirable consequences:

• Community of heirs: Spouse and children inherit jointly and must agree on each item of the estate
• Not taken into account: Cohabiting partners, stepchildren and friends have no legal right of inheritance
• Dispute: Without clear rules, inheritance disputes often last for years
• Tax disadvantages: Tax allowances are not optimally utilised without structuring
• Company succession: Without a provision in the will, the community of heirs can block the continuation of a company

A will is almost indispensable, especially in the case of patchwork families, property ownership or company shareholdings. Attorney Reichelt will advise you on which form of will is the right one for your personal situation. If you want to draw up a will, you should find out about the various options at an early stage.

Forms of the will

Personal (handwritten) will (§ 2247 BGB)

The handwritten will must completely handwritten be drawn up and signed. It is the simplest and cheapest form of will. Important requirements:

• Completely handwritten: No computer, no typewriter - every word written by hand
• Signature: With first name and surname at the end of the text
• Date and place: Highly recommended, even if not mandatory - if there are several wills, the date is decisive for the question of which will applies
• Clear formulation: Clear designation of the heirs and their shares

Advantage: Free of charge and changeable at any time. Disadvantage: Increased risk of formal errors, traceability risk and interpretation disputes. Especially in more complex estate planning situations, it is advisable to consult a lawyer beforehand in order to avoid formal errors and unclear wording.

When you draw up a will, you should also think about subsequent changes. There is a particular risk with additions and addenda: Every amendment must also be handwritten, dated and signed. Strikethroughs alone are not sufficient to effectively revoke passages.

Notarised will (§ 2232 BGB)

In a notarised will, the testator declares their last wishes before a notary, who records them in a deed. The costs are based on the value of the estate (GNotKG fee table).

Advantages:

• Legal advice from the notary
• Reduced risk of formal errors
• Official custody at the probate court
• Replaces the certificate of inheritance in many cases - saving heirs time and money

Costs of the notarised will: The notary fees are based on the net assets of the deceased. For an estate value of €100,000, the fee is around €273, for €250,000 around €535 and for €500,000 around €935 (in each case a simple fee in accordance with the German Notary Act (GNotKG), plus expenses and VAT).

Berlin will (Section 2269 BGB) - the joint spouse's will

The Berlin will is the most popular form of will for married couples. The spouses set themselves each other as sole heirs one. Only after the death of the surviving spouse do the children inherit (final heirs).

Advantages:

• The surviving spouse is financially secure and can freely dispose of the entire estate
• Clear regulation without community of heirs between spouse and children
• Possible as a handwritten will - one spouse writes, both sign

Disadvantages and risks:

• Claims to a compulsory portion of the children: Children can claim their compulsory portion from the very first inheritance
• Binding effect: After the death of the first spouse, the surviving spouse can generally no longer change the will (so-called reciprocity)
• Tax disadvantages: The children's tax-free allowances (€400,000 per parent) are not utilised in the first inheritance - higher inheritance tax may be payable in the second inheritance
• Remarriage clause: Without such a clause, the surviving spouse can remarry, making the new spouse the legal heir

Mandatory portion penalty clause: Many Berlin wills contain a penalty clause: if a child claims their compulsory portion in the first inheritance, they are also limited to the compulsory portion in the second inheritance. This clause is intended to prevent the children from putting financial pressure on the surviving spouse.

Tax organisation: In order to minimise the tax disadvantages of the Berlin will, bequests can be made in favour of the children at the first inheritance (so-called super bequest). In this way, the children's tax-free allowances are utilised without placing an economic burden on the surviving spouse.

Safe custody of wills - securely deposited

Safe storage of the will is crucial. A will kept at home can be lost, damaged or suppressed by third parties. The following safekeeping options are available:

Official custody at the probate court

The handwritten will can be filed with the competent local court (probate court) in the Special official custody be given (§ 2248 BGB). The one-off fee is 75 Euro. The will is automatically saved in the Central Register of Wills (ZTR) registered with the Federal Chamber of Notaries (fee approx. €15-18). In the event of inheritance, the will is reliably located and opened by the probate court.

Notarial custody

A notarised will is automatically placed in official safekeeping. There is no additional work for the testator.

Private storage

Keeping it at home (e.g. in a safe) is permissible, but harbours risks: Loss, destruction or suppression by persons who do not benefit from the will. Anyone who finds a will is obliged to hand it in to the probate court in accordance with § 2259 BGB. Suppressing a will is a criminal offence (§ 274 StGB).

Inheritance contract - the binding alternative

A Contract of inheritance (§ 2274 BGB) is concluded between the testator and one or more contracting parties and must be notarised be made. In contrast to a will, an inheritance contract is Binding and can only be cancelled by mutual agreement.

An inheritance contract makes sense if:

• Want to protect non-marital partnerships (no joint will possible)
• consideration is agreed (e.g. care in return for an inheritance)
• A binding arrangement is desired that cannot be revoked unilaterally

Legacy - individual donations

A Legacy (Section 1939 BGB) makes it possible to bequeath certain objects or sums of money to individual persons without appointing them as heirs. The legatee does not become an heir and is not liable for debts of the estate.

Typical legacies:

• A certain amount of money for the grandchild
• A piece of jewellery for your best friend
• A right of residence for the life partner
• The transfer of a specific property or condominium

Execution of wills

The testator can Executor of a will who settles the estate and implements the instructions in the will (§ 2197 BGB). An executor makes sense in the case of:

• Complex estates (real estate, shareholdings)
• Minor heirs
• Expected inheritance dispute
• Permanent administration (e.g. letting a property for underage heirs)

A lawyer, a tax consultant or a person of trust can be appointed as executor. The remuneration is based on the recommendation of the German Notary Association or an individual agreement.

Will and Inheritance law - Tax aspects

Tax aspects should be taken into account when drafting a will. The Inheritance tax allowances amount:

Degree of relationship	Tax-free amount
Spouse / registered civil partner	500.000 €
Children	400.000 €
Grandchildren (with living parent)	200.000 €
Parents / Grandparents	100.000 €
Siblings, nieces, nephews	20.000 €
Unrelated persons	20.000 €

By skilfully drafting your will, you can make optimum use of tax allowances and minimise your tax burden. Mr Reichelt will advise you on the tax implications of your inheritance arrangements.

Will for entrepreneurs

The drafting of a will is particularly important for entrepreneurs and shareholders. Without clear inheritance regulations, the death of a shareholder can lead to the company leaving the company, which can jeopardise the continuation of the business.

Key aspects of company succession:

• Observe the articles of association: Succession clauses in the partnership agreement must be harmonised with the will
• Avoid community of heirs: Several heirs as shareholders can block the company's ability to act
• Utilise tax benefits: Under certain conditions, business assets can be inherited tax-free up to 100 % (Sections 13a, 13b ErbStG)
• Order the execution of the will: An executor can manage the company on an interim basis until the successor is ready

Creating a will - avoid typical mistakes

• Formal error: Will written on a computer - ineffective!
• Unclear formulations: „My assets should be divided fairly“ - what does „fairly“ mean?
• Mandatory portion forgotten: The disinheritance of close relatives does not eliminate the right to a compulsory portion
• Taxes not considered: Inheritance tax optimisation was not taken into account
• No substitute heirs: What happens if the designated heir predeceases the deceased?
• Storage: Will kept at home and not deposited with the probate court - risk of loss or suppression
• Outdated will: After divorce, remarriage or the birth of a child, the will must be reviewed and amended if necessary
• Contradictory dispositions: Several wills with contradictory provisions lead to interpretation disputes

Frequently asked questions about wills

Can I change my will at any time?

You can revoke or amend an individual will at any time by making a new will. In the case of a joint will, changes are generally no longer possible after the death of the first spouse.

Does a will have to be drawn up by a notary?

No, a handwritten and signed will is just as effective. However, notarisation offers more legal certainty and can replace the certificate of inheritance.

What does a will cost at the lawyer's?

The costs for legal advice on drafting a will are based on the value of the estate. An initial consultation is limited to a statutory fee. An individual fee can be agreed for the preparation of a draft will.

Where should I keep my will?

The safest is the Official custody at the probate court. The cost is a one-off fee of 75 euros. In addition, the will is registered in the Central Register of Wills (ZTR) so that it can be reliably located in the event of an inheritance.

What happens to my will in the event of Divorce?

If the marriage is divorced, testamentary dispositions in favour of the spouse generally become ineffective (Section 2077 BGB). This also applies if the conditions for divorce existed at the time of death and the testator had requested or agreed to the divorce. Nevertheless, you should review your will after a divorce and redraft it if necessary.

Do I need a will as a young person?

A will makes sense at any age as soon as you own assets or want to protect certain people. A will is particularly important for property ownership, non-marital partnerships, children or business interests. A will drawn up at an early stage can be amended at any time.

This article is intended to provide general information and does not replace individual legal advice. For the preparation or examination of your will, please contact Lawyer Martin Reichelt in Dresden.