Last will and testament

To ensure that the bequest corresponds to personal interests and wishes, it is important to make individual arrangements for the ‘last will and testament’ in good time

A will is the right way to organise your estate in accordance with your own wishes – it is therefore a document of unparalleled importance. It is important that the will is well thought out, but also that it is drafted correctly. The latter in particular is crucial to ensuring that the last will and testament is actually honoured.

Wills and intestate succession – how are they connected?

If a person dies, the so-called statutory succession applies, which is regulated in great detail in the German Civil Code (BGB). An estate is therefore never completely unregulated. If intestate succession applies, close relatives inherit first and foremost: for example, if the deceased has children and a spouse, these persons inherit by law.

If someone has no children and no spouse (any more), the parents or siblings of the deceased person may inherit on the basis of intestate succession.

If this statutory succession does not correspond to how you want your estate to be organised, you can make your own arrangements for succession in a will.

Form of will: handwritten will, notarised will?

In principle, you can write a will by hand and make it effective. However, it is important that it is signed by this person at the end of the text. If the signature is missing, the will is not valid. Spouses can also draw up such a handwritten will together as a joint will, for example.

It is also possible for a notary to notarise a will – this is known as a notarised will. However, notarisation incurs costs. Although the notarised will can replace the certificate of inheritance, the costs of the certificate of inheritance can be deducted as inheritance tax costs in the inheritance tax return. Furthermore, estate planning should also include an inheritance tax optimisation of the inheritance, although this may not be carried out by a notary.

For whom is a will important?

This question is difficult to answer in general terms. In principle, however, a will is important for people who do not agree with the legal order of succession (see above) and want to make their own arrangements for their estate.

A will can then be important for, among other things

• Parents who wish to disinherit individual children or their spouse
• Parents of minor children
• Entrepreneurs (entrepreneur’s will)
• Persons with special needs (e.g. ‘disabled will’)
• Patchwork families
• Childless couples who wish to appoint friends or organisations as heirs, for example
• Single persons

Support from a lawyer makes sense

Anyone wishing to make their last will and testament – alone or together with their spouse, for example – should approach this issue with the support of a lawyer: The support of a lawyer offers, among other things, the certainty that the last will and testament will be legally valid and implemented in accordance with your wishes.

This is fundamentally different for everyone and every family constellation. Every case is unique and the legal aspects of a will can be complex. A lawyer can tailor the will to individual needs and the specific estate. For this reason, it is not advisable to use sample wills. As a rule, specimen wills cannot reflect someone’s individual wishes. In addition, it is not uncommon for laypeople to misunderstand ready-made wills and their legal consequences.

For this reason, people who want to organise their estate should always seek the advice of a lawyer specialising in inheritance law. On the one hand, the lawyer can review the ideas for the drafting of the will and implement these wishes in a legally correct manner in a draft will.

In particular, it is possible to discuss issues such as inheritance tax or anticipated succession and incorporate them into the draft.

Tax allowances for heirs

The thought of inheritance tax is unpleasant for many heirs. However, especially close relatives such as children, but also the spouse, can claim allowances for inheritance tax: for example, each child can inherit assets worth 400,000 euros and the spouse can inherit assets worth 500,000 euros without having to pay inheritance tax. Tax is only payable on amounts above this allowance.

Check & update regularly

In principle, a will is valid for an unlimited period of time. This means that even a very old will can be valid if there is no more recent will from the same person. This is because a younger, valid will cancels the effect of the older will.

To ensure that a will actually corresponds to the last will and testament, its content should therefore be checked regularly: Is everything still as correct? Has anything changed that should now be taken into account in the will (e.g. birth of children, divorce, etc.)?

If it is the case that life circumstances have changed, it may be important to update the will. At best, however, this is not done by making corrections, e.g. in a handwritten will. It is legally safer to redraft the will yourself or have it redrafted.