Inheriting debts: what you can do to prevent this from happening!

An inheritance – despite all the personal tragedy – is often a financial blessing for the heirs. Never before has so much wealth been inherited in Germany as at present. However, there is also the other case: the testator or the testatrix – e.g. one’s own parents or spouse – had nothing but a mountain of debt.

What happens then? Does one automatically remain “stuck” with the debts and may be liable with one’s entire private assets, e.g. for the inherited debts of one’s parents or deceased spouse? Or is there something you can do about it?

Can debts be inherited?

The short answer to this question: Yes, you can inherit debts. The reason for this is the so-called universal succession: with the death of a person, their assets pass as a whole (= inheritance) to one or more persons (heirs). The liabilities of the estate are also part of the inheritance. According to the law, these include in particular the debts of the testator that he or she had at the time of death. If a person who had debts dies, this person therefore also leaves behind the debts – one “inherits debts”.

It is not uncommon for the problem of “inheriting debts” to hit children and/or spouses – and often completely unprepared. In the case of testamentary succession, this often only affects the children when the last parent dies; because it is often stipulated in the will that the parents’ assets only pass to the children upon the death of the longer-lived parent (“Berliner Testament“).

If spouses have settled their estate by will, in many cases the surviving spouse becomes the sole heir and is then affected by any debts of the estate. In the case of intestate succession (without a will), however, the spouse and any children (or the spouse and his or her parents-in-law) usually form a community of heirs, so that all are jointly affected by the debts. Especially if minor children are involved, this can lead to considerable consequential problems. In any case, it makes sense to think about the inheritance of possible debts during one’s lifetime and, if necessary, to seek expert advice when drawing up a will. Especially if, for example, an owner-occupied property could later be affected by the debts.  

What debts can you inherit?

In principle, all debts are part of the inheritance. Where these debts come from is irrelevant. Therefore, one inherits, for example, debts from contracts (unpaid bills, rent, etc.) as well as, for example, payment obligations to the tax office or other authorities (e.g. tax debts).

In principle, the heirs are also obliged to correct or make up for any incorrect / incomplete information provided by the testator to the tax office.

Refuse an inheritance?

It is common to hear and read: If debts are part of the inheritance, you should renounce the inheritance. But is that really always the right way?

The following applies in principle: If debts are part of the estate, one cannot “disclaim” the debts of an inheritance in isolation, but one can in principle only disclaim the inheritance as a whole. By disclaiming an inheritance, one renounces everything that belongs to the inheritance. It therefore makes sense to disclaim the entire inheritance, especially if the estate consists only of debts.

The consequence of the effective disclaimer of the inheritance is that the disclaiming party is placed in the same position as if he or she had not inherited from the beginning. The inheritance is deemed not to have accrued. In principle, however, one also loses the right to all personal belongings of the deceased, such as photo albums, mementos or the like.

In any case, it is advisable to have the inheritance situation and the consequences of a possible acceptance or disclaimer of an inheritance examined by a lawyer in advance in order to avoid unpleasant surprises.     

What do you have to consider if you want to disclaim an inheritance?   

In order to be able to disclaim the inheritance in a legally effective manner, the following things in particular must be observed:  

1. There is very little time to disclaim an inheritance. The law provides for a disclaimer period of 6 weeks from the date of knowledge of the inheritance. In rare exceptional cases with a foreign connection, a longer period may apply, but this is generally not to be assumed. An extension of the deadline is not possible! If the deadline is missed, the inheritance is considered accepted. Then, at most, an administration of the estate or insolvency proceedings (more on this below) or, in very rare exceptional cases, a contestation of the acceptance of the inheritance can prevent one from being liable for the debts of the estate with one’s own assets.
2. The disclaimer must be valid in form. The declaration of disclaimer must be made on the spot “for the record of the probate court” within the disclaimer period or submitted in publicly certified form (notarially) to the competent probate court. The competent probate court is in principle the district court in whose district the deceased person had his or her last domicile/residence.
3. A probate is only possible if the inheritance has not been accepted beforehand. Such acceptance of the inheritance does not require an express declaration to the probate court, but can also only result from the heir’s actual conduct after the inheritance. For example, the assertion of a claim for payment in the estate or access to an account of the deceased may constitute a so-called “implied” acceptance of the inheritance by conclusive action, so that the inheritance can no longer be disclaimed.

Instead of disclaimer: Limit Heir’s Liability for Debts to Estate?

It is often not possible to determine within the disclaimer period whether an inheritance is overindebted or not. In this case, disclaiming the inheritance “out of the blue” can be disadvantageous from a financial point of view: especially if it later turns out that the estate assets exceed the value of the debts. In these cases, too, a disclaimer generally leads to the fact that there are no longer any claims to the estate, i.e. one goes away empty-handed.

In such a situation, it may therefore make sense not to disclaim the inheritance, but instead to immediately limit the heir’s liability for debts arising from the inheritance to the estate by taking appropriate measures. This reduces the risk of being liable for the testator’s debts with one’s own assets. The law basically recognises two possibilities for obtaining a limitation of liability: estate administration and estate insolvency proceedings.

1. Estate administration

The administration of the estate is “a guardianship of the estate for the purpose of satisfying the creditors of the estate” at the request of the heirs to the probate court. The probate court then appoints an administrator of the estate. This person arranges and administers the estate and, if necessary, settles any debts from the estate. If any positive assets remain, the heirs then receive these proportionately. If the estate is not sufficient to cover the debts of the estate, the estate insolvency proceedings are opened.

2. Probate insolvency proceedings

Probate insolvency proceedings are opened at the request of the heirs at the probate court. It is a “normal” insolvency procedure – limited to the estate. If the opening of probate insolvency proceedings is refused because not even the costs of the proceedings are covered, the heirs receive a corresponding order from the court. With this order it is then possible to refuse payments to creditors of the estate.

Quick action is important!

If debts are part of an inheritance, there are possibilities for the heirs (e.g. children and/or spouse) not to be liable for the debts of the inheritance with their own assets – the probate of the estate, the administration of the estate and the estate insolvency proceedings. Which measure is the right one, if any, depends on the specific individual case, so seeking legal advice without delay is strongly advised.

Since the decision to accept or disclaim the inheritance must be made within the six-week (!) disclaimer period even when advised by a lawyer, it is important to involve the lawyer as early as possible. Otherwise, the counsellor often has no/very little time to obtain further information if necessary and to assist in a well-considered decision-making process.