Le Grand Guide de l’héritage – Allocations, droits de succession et informations les plus importantes
The inheritance is a complex topic to which many are confronted without being prepared. In order to shed light on the subject, we, the experts at IHV, explain all the important questions regarding inheritance.
Without a will, the inheritance is divided according to the rules of intestate succession. However, this is not always in the testator’s best interest. If there is a will, the assets can be distributed differently from what is provided by law, and people not related by blood can also inherit. Therefore, drafting a will is important not only to precisely settle final wishes but also to avoid family disputes. Learn everything about wills and inheritances with the experts at IHV.
Correctly Bequeathing While Still Alive – The Will and Its Legal Consequences
Without a will, the inheritance is divided according to the rules of intestate succession. However, this is not always in the testator’s best interest. If there is a will, the assets can be distributed differently from what is provided by law, and people not related by blood can also inherit. Therefore, drafting a will is important not only to precisely settle the last wishes, but also to avoid family disputes.
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A will cancels the legal succession and can therefore establish a new succession. The person who inherits is determined by the testator. If several people are named, the assets are generally divided according to shares. Drafting a will also gives the testator the opportunity to bequeath certain items to specific people, such as a car, jewelry, or real estate. However, these are not legally considered as inheritance, but as bequests. In order to avoid disputes regarding the succession, it can be divided in a will in such a way that no dispute can arise.
If there is no will and a property is part of the inheritance, it becomes the property of the heirs. In most cases, a community of heirs is formed, in which no one can dispose of the inheritance alone. When such a property is sold, all heirs must agree. This fact can often lead to conflicts within the community of heirs. In addition, the costs of a notarized will are generally half as high as the costs of the homologation procedure to which the heirs must resort in the absence of a will. A will allows the testator to precisely settle the last wishes regarding the assets and to avoid unnecessary disputes and costs for all parties involved.
Pre-heir and post-heir – tasks, duties and rights
Le testateur est libre de déterminer les héritiers et peut donc transférer ses biens à plusieurs personnes de manière échelonnée dans le temps. Par conséquent, l’héritier subséquent ne reçoit son héritage qu’après qu’une autre personne, en l’occurrence l’héritier précédent, ait hérité. Le testateur peut, par exemple, choisir une occasion ou un moment dans le temps pour que la succession ait lieu, comme la majorité ou la réussite de l’examen de maîtrise.
Les héritiers précédents et suivants sont tous deux des successeurs légaux du testateur, mais ne forment pas une communauté d’héritiers dans laquelle ils hériteraient en même temps, mais plutôt à des moments échelonnés en raison de l’instigation du testateur. L’héritier subséquent a un droit d’attente à la succession et donc, lorsque la succession se produit, l’héritage de l’héritier précédent s’éteint, ce dernier cesse d’être héritier et l’héritage revient à l’héritier subséquent. Dans le cas où l’héritier subséquent est déjà décédé au moment de la succession, le testateur doit prendre des précautions et nommer d’autres héritiers subséquents.
Les pré-héritiers sont également appelés “héritiers temporaires”. Selon l’interprétation du testament, les pré-héritiers n’ont que certains pouvoirs de disposition sur la succession et sont donc assez limités dans ce qu’ils peuvent faire. En outre, les droits de succession incombent toujours aux pré-héritiers au départ, car eux seuls sont légalement désignés comme héritiers et supportent donc les conséquences fiscales.
Abattements sur les successions – Droits de succession et donations
Afin de protéger les héritiers d’une charge financière importante, différents taux d’imposition et abattements s’appliquent en fonction du degré de parenté. Ces abattements comprennent diverses choses qui ne doivent pas être imposées afin que les héritiers n’aient pas à payer le plus d’impôts, surtout dans le cas d’une succession importante.
Les allocations de pension sont payables si le partenaire ou les enfants étaient dépendants du soutien financier du défunt. Pour les conjoints, l’allocation de retraite est de 256 000 euros, à condition que le conjoint survivant ne dispose pas d’une pension de veuve ou d’une pension professionnelle non soumise aux droits de succession. Pour les enfants, des allocations de pension s’appliquent, qui sont graduées en fonction de l’âge de l’enfant au moment du décès. Les enfants en bas âge jusqu’à l’âge de 5 ans ont droit à une allocation de retraite de 52 000 euros. À partir de ce point, l’allocation de retraite diminue d’environ 10 000 euros tous les cinq ans. Les enfants âgés de 20 à 27 ans peuvent donc prétendre à une allocation de retraite de 10 300 euros, mais ces allocations ne sont pertinentes que si les enfants n’ont pas de pension propre, comme une pension d’orphelin.
Les autres allocations, en plus des allocations de pension, sont réglementées en fonction du degré de parenté et sont indépendantes des pensions de survivants existantes ou de la fortune propre. Ainsi, les conjoints et les partenaires enregistrés héritent d’une allocation de 500 000 euros. Les enfants du défunt ou les petits-enfants du défunt, si leurs parents décèdent avant la succession, peuvent prétendre à une allocation de 400 000 euros. Les petits-enfants dont les parents sont encore en vie peuvent prétendre à des allocations non imposables de 200 000 euros. Pour les arrière-petits-enfants ou les propres parents du défunt, les allocations s’élèvent à 100 000 euros. Tous les autres héritiers peuvent prétendre à des indemnités non imposables de 20 000 euros. Pour s’assurer que l’impôt à payer lors de la succession soit le plus faible possible, le testateur peut prendre des décisions importantes bien avant le décès et les fixer dans le testament.
Droits de succession et donations – toutes les informations importantes
INHERITANCE TAX AND GIFT TAX ARE CLOSELY RELATED. THE DEDUCTIONS ARE ALMOST THE SAME AS IN THE CASE OF INHERITANCE. HOWEVER, THE DEDUCTIONS GIVEN AS GIFTS CAN ONLY BE LEFT TAX-FREE ONCE EVERY TEN YEARS. TESTATORS WHO WISH TO REDUCE INHERITANCE TAX FOR THEIR HEIRS MUST THEREFORE BEGIN GIVING AWAY THEIR ASSETS TEN YEARS BEFORE THEIR DEATH. IN THE CASE OF RECONSTRUCTED FAMILIES, THIS REGULATION MEANS IT MAY BE ADVISABLE TO ADOPT THE SPOUSE’S CHILDREN IN ORDER TO MAKE THE TAX-FREE AMOUNTS EQUAL TO THOSE OF THE BIOLOGICAL CHILDREN. ADOPTION DOES NOT AFFECT THE INHERITANCE FROM THE OTHER BIOLOGICAL PARENT.
IN ADDITION TO TAX DEDUCTIONS, THERE ARE ALSO ASSETS THAT ARE NOT TAXED. FOR CLOSE RELATIVES OF TAX BRACKET I, MOBILIA SUCH AS HOUSEHOLD EFFECTS OR SIMILAR DAILY USE ITEMS ARE CONSIDERED NON-TAXABLE IF THEY DO NOT EXCEED A VALUE OF 42,000 EUROS. FOR ALL OTHER HEIRS, A VALUE OF 12,000 EUROS APPLIES HERE. IF ARTWORKS, ARCHIVES OR LIBRARIES ARE PART OF THE INHERITANCE, THEY ARE GENERALLY TAX-FREE AT 60 PERCENT. IF THE INHERITANCE INCLUDES A BUILDING IN WHICH ONE OF THE HEIRS LIVES, THIS CAN ALSO BE TAX-FREE.
THE MANDATORY SHARE OF THE INHERITANCE – DISINHERITMENT, WILL AND SUCCESSION PACT
In principle, everyone is free to decide who they designate as heir and who they disinherit. The testator does not have to justify in their will why they exclude a family member from the inheritance. However, an exclusion does not mean that the heir receives nothing, because every heir has a right to a mandatory share. This claim must be made by the heir themselves, because these claims for mandatory shares are not noted on the inheritance certificate. If the testator designates a person as the sole heir, this means on the one hand that this person alone inherits the entire estate, but also that no one else is entitled to inherit who would actually have the right to inherit.
Married couples can jointly disinherit close relatives in a succession pact or a Berlin will. In a classic form of a Berlin will, spouses stipulate that the older partner will be the sole heir and that the children will inherit only after the death of both spouses. This way, the parents disinherit their children until both are deceased. If a person is disinherited, the portion of the inheritance that would have gone to that heir goes to the person who would have become the heir had the disinherited person already been deceased at the time of the inheritance.
Settling the inheritance – heir communities and intestate succession
In ideal cases, the heirs of an heir community would quickly pay off any potential debts from the inheritance, and then dissolve the heir community by distributing the remainder according to shares. However, this is often not the reality. Disputes within the heir community often result in them remaining unresolved for years after the inheritance. Each member of such an heir community has the right to request dissolution at any time, even without a valid reason.
In order for an heir community to be dissolved without dispute, it is advisable to follow certain steps. From the proper evaluation of the inheritance to inheritance taxes, there are important formalities to observe.
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Determine the inheritance
A community of heirs cannot be divided until the inheritance has been determined. Heirs receive most of the information from the bank where the deceased had their accounts or deposits. In order to access this information, a certificate of inheritance or a will with a court-ordered opening protocol is required. However, debts are also part of the inheritance. In order to fully determine the inheritance, it is necessary to compare and reconcile the debts and assets.
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Paying the inheritance debts
The debts of the inheritance can be paid by the heirs of the inheritance community. It is not uncommon for items belonging to the inheritance to be sold for this purpose, such as real estate or land.
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Gifts and donations are taken into account
If an heir received gifts or donations from the deceased while they were still alive, these may be subject to equalization. Donations subject to equalization increase the estate arithmetically and are deducted from the heir’s share of the inheritance. Each heir may request information from the others about these donations to ensure they are properly accounted for.
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Sell indivisible items
If a true division is not possible for certain items, such as a property shared among the heirs, they may be required to sell the asset or have it seized. To do this, a realistic selling price must first be determined. If no agreement is reached, one of the heirs may initiate a forced sale auction.
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Distribute divisible items
The inheritance is initially intended to be divided among the heirs in kind. Each heir may therefore take objects from the estate for themselves, in agreement with the other heirs. Money and securities can be divided among the heirs by the community according to their respective shares.
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The care services take into account
If a child cared for the deceased parent without receiving anything in return while the parent was alive, compensation can be claimed for this. This compensation must be adjusted according to the duration, extent, and value of the inheritance.
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The notary helps
If an agreement cannot be reached, the group of heirs can turn to a notary. The notary acts as a mediator between the heirs in order to reach an agreement as quickly as possible. However, it should be kept in mind that this assistance is associated with certain costs.
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Think about the tax office
Inheritance tax is always due on an inheritance. However, certain elements of the inheritance can be deducted from the tax, such as funeral expenses or the costs of opening the will.
Legal inheritance – this refers to how you inherit according to the law.
Legal succession determines both the order of heirs and the individual shares that are inherited. Close relatives, such as children and grandchildren, inherit first, followed by more distant relatives, such as nephews and nieces. Close relatives generally exclude more distant relatives from the inheritance. The proportion in which different heirs inherit is documented in the inheritance certificate. Legal succession is based on the system of parentel or order. It divides relatives into different orders. Therefore, the children and grandchildren of the deceased belong to the first order. The parents, brothers and sisters, nephews and nieces of the deceased belong to the second order. The third order includes grandparents, uncles and aunts as well as cousins of the deceased. Spouses and registered partners are not considered relatives, but have the right to inherit as spouses. This grants them a special status and limits the right of close relatives to inherit. Relatives from the previous order always exclude relatives from the next order from the inheritance.
Find out more about legal succession!
The division of inheritance in heir communities – the costs and procedure
Items such as real estate or land often lead to disputes within heir communities. Ideas about how to proceed with joint ownership are too different and the participants cannot reach an agreement. Each heir has the right to request the division of the heir community at any time and thus force its dissolution. In such a case, a forced auction may be the last resort to resolve disputes and dissolve the heir community.
Heirs without a will – depending on the degree of kinship
Although the spouse or registered partner is not considered a parent in legal succession, they occupy a special position. If the deceased leaves a spouse and children, the spouse inherits half of the estate and the children the other half. However, if there are more than three children, the spouse receives only a quarter and the children share the rest. If there are only secondary relatives or grandparents, the spouse receives half of the estate and the secondary and tertiary relatives share the other half. If there are no first, second, or third degree relatives, the spouse inherits everything.
Heirs of the first degree – children and grandchildren
The children and grandchildren of the deceased are included in the first order. Unmarried children born after July 1st, 1949 also have the right to inherit. If a child of the deceased and the spouse are alive at the time of death, both inherit half each. If several children are alive, the inheritance is divided among them and the spouse. If the children of the deceased are already deceased, the grandchildren inherit.
Explanation with an example: If the deceased leaves his mother, his spouse, 2 children with two grandchildren each, and one deceased child with one grandchild, the inheritance would be as follows. The mother does not have the right to inherit, because she belongs to the second order and there are heirs in the first order. The spouse and the two living children inherit equally. The grandchild of the deceased child takes the place of the parent in the inheritance and therefore inherits equally with the two living children and the spouse. The grandchildren of the living children do not inherit either.
Heirs of the second order – parents and siblings
If there are no children or grandchildren, the heirs of the second order inherit. The second order includes parents, siblings, nephews and nieces. If both parents of the deceased are alive at the time of death, the inheritance is divided in two. However, if one of the parents has already died, the descendants of that parent, that is, the siblings or nephews and nieces of the deceased, take their place.
Explanation with an example: the testator leaves his mother, a sister with two children, a nephew of the deceased brother, and a half-sister from the father’s second marriage. The inheritance is therefore divided as follows: Half of the inheritance goes to the maternal line and the other half to the paternal line. Since the mother is still alive, she receives half of the inheritance. As the father is already deceased, his inheritance goes to his children. In this case, to the sister, the deceased brother and therefore the nephew of the deceased and the half-sister from the father’s second marriage. These three share the other half of the inheritance. The children of the still-living sister do not inherit.
Heirs of the third order – grandparents and aunts / uncles
If the deceased leaves only heirs of the third degree, the inheritance is divided as follows. The deceased’s estate goes to the grandparents and their descendants. If a grandparent has already died, the inheritance also goes to the deceased’s aunts, uncles, cousins, and cousins.
Explanation with an example: if the testator leaves only his grandmother and an aunt with two children, they inherit as follows. The grandmother receives half of the estate. As the grandfather has already died, his descendants inherit his share. In this case, the aunt inherits the other half of the estate. However, the two children do not inherit.
Inheriting debts – form and deadlines
To renounce an inheritance, certain rules must be respected. It is not enough to inform the family or to not react to the inheritance. The form is very important. The heir must make a renunciation before the probate court, either in the form of a written document or in a form certified publicly. However, a simple letter is not sufficient. A personal appearance before the probate court is also possible. There, the heir explains their request and a court officer records it in writing. The district court in the district where the deceased had their last residence is competent. However, it is not only the form that determines the success of the non-liability clause, but also the content and the deadline of the declaration. The declaration must clearly state the reasons why the inheritance should not be accepted. The reasons must be clearly listed. This may, for example, be the fact that the estate mainly consists of debts.
The declaration is subject to a so-called six-week period. If the inheritance is not to be accepted, the corresponding declaration must be submitted to the competent probate court within six weeks, otherwise the inheritance is deemed to have been accepted.
In general, the probate court is not obliged to notify. Heirs are only informed of the inheritance if there is a will or if they inherit because, for example, someone else has already renounced the inheritance. In all other cases, the heirs are assumed to know whether they inherit from a deceased family member or not.
More on the topic of inheriting debts through a will!
Renunciation of inheritance – the deadlines, the costs and the most important information
Inheritance does not always leave only good things for the descendants. Although many dream of wealth and expensive jewelry, debts or run-down real estate can also be part of the inheritance. In such cases, it is possible to renounce the inheritance within a certain period and by meeting certain criteria.
To renounce an inheritance, certain rules must be followed. Simply informing the family or not reacting to the inheritance is not enough. The form is very important. The heir must make a renunciation before the probate court, either in the form of a written document or in a publicly certified form. However, a simple letter is not sufficient. A personal appearance before the probate court is also possible. There, the heir explains their request and a court clerk records it in writing. The district court in the district where the deceased had their last residence is competent. If the deceased was German but lived abroad, the district court in Berlin-Schöneberg is competent. There is a special regulation in Baden-Württemberg. In this federal state, the state notary office is your contact.
However, it is not only the form that is very decisive for the success of the renunciation clause, but also the content and the deadline of the declaration. The declaration must clearly state why the heir does not wish to accept the inheritance. The reasons must be clearly listed. For example, it may be that the inheritance consists mainly of debts. The declaration is subject to a so-called six-week period. If the heir does not wish to accept the inheritance, the corresponding declaration must be submitted to the competent probate court within six weeks, otherwise the inheritance is considered accepted. The deadline is assumed to be the day on which you became aware of the inheritance, which generally coincides with the day of death. The deadline is only extended in certain exceptional cases. For example, if the deceased or the heir themselves is abroad at the time of death, the six-week period may be extended.
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