Interview: This is what it’s all about

As an entrepreneur, it is important to think from the outset about how one’s own assets and business can be secured and maintained in the long term. A family foundation can be an interesting option here, as it not only offers asset protection and inheritance planning, but can also have potential tax advantages. By establishing a family foundation, for example, entrepreneurs can reduce their tax burden and thus achieve tax savings.

We talk in the interview about:

1. What is a family foundation, why and when do you “need” it
2. What are the 3 central advantages of a foundation
3. What about taxes? Corporation, donation, inheritance & Co.

We conduct the interview with Immobilien-Erfahrung.de (in conversation “IE”).

What is a family foundation?

FIV: Let’s start with an overview:

IE: To ensure that family assets are preserved in the long term, it is important to protect them from various risks such as inheritance disputes, creditors and the tax office. One possible option here is to set up a family foundation, which can provide the founder and his family with economic security over generations and protect the assets from being broken up. This is a legally independent foundation that manages real estate, company shares and other assets.

So in a nutshell:

• Protection of family assets over generations
• Avoidance of inheritance disputes and break-up of assets
• Possibility to manage assets such as real estate and company shares in the foundation
• Tax advantages due to the taxation of the foundation with corporate income tax
• Possibility to avoid the right to a compulsory portion of family members

Well-known family foundations in Germany

FIV: Strong, because we have many articles on the subject of first capital investment buy & Co. So that it does not become too abstract for our readers, what are the most well-known family foundations in Germany? Who do you know? Can you tell us 3 examples?

IE: Yes, of course, there is the Bertelsmann Foundation, for example, founded by Reinhard Mohn, is one of the largest foundations in Germany and is involved in the areas of education, society and culture.

There is also the Robert Bosch Stiftung, founded by Robert Bosch, promotes projects in the fields of health, science and technology, and international relations. Another flagship would be the Krupp Foundation, founded by the Krupp family, is involved in the areas of culture, education and science as well as in the promotion of social projects.

Then there is:

• Aldi Nord and Aldi Süd Stiftung Stiftungs GmbH
• Otto Group Foundation
• BMW Foundation of Herbert Quandt
• And many more!

When does a family foundation make sense?

IE: Roughly speaking, very roughly speaking:

It only really makes sense to set up a family foundation with a capitalization of around 1 million euros.

Protection of family assets and businesses

FIV: Now let’s get to the core of the interview, the why and wherefore! What does protecting assets mean, from whom and why should I protect my assets – once I am a millionaire?

IE: Even though the family foundation is not tax-exempt, several factors can make it worthwhile to establish:

Raising a family is often a long and arduous process of hard work and hardship. It is therefore understandable that entrepreneurs are concerned that their legacy will not be carried on in their spirit after their passing.

One way to alleviate these concerns is to establish a family foundation.

Divorce, inheritance, family dispute – examples

Establishing a family foundation ensures that the entrepreneur’s assets remain in the family and are not fragmented by divorce or inheritance.

A foundation can also help avoid the breakup of the company, as foundations do not issue shares that can be bought out. This provides effective asset protection, as the foundation retains control over the assets and manages them in accordance with the wishes of the entrepreneur and his family.

In addition, family foundations can also help preserve family peace by providing a clear structure for the management and distribution of assets.

However, the foundation can also play an important role in supporting charities and non-profit projects, which can be of great importance for entrepreneurs who want to engage in social responsibility, of course also in the point of self-PR.

Inheritance: taxes and protection

FIV: According to the Hans Böckler Foundation, the annual inheritance volume in Germany, including gifts, will amount to up to 400 billion euros in the period up to 2027 – per year. Inheritance is an important topic. Therefore the question, what can a family foundation do in terms of inheritance?

To illustrate this, here are the figures for the number of taxable inheritances and gifts in Germany from 2008 to 2021.

400 billion per year

180,000 inheritances per year

You can find more statistics at Statista

IE: By establishing a family foundation, family members can be provided with binding security during the founder’s lifetime. The clear structure of the foundation can help to defuse potential inheritance disputes in advance. This can be of great advantage, especially in the case of large estates or complex family structures.

Inheritance and mandatory shares

Another advantage of setting up a family foundation is that the founder can avoid the claim of children or parents to his inheritance (so-called claim to a compulsory portion) if he transfers the assets to the foundation ten years before his death. This can be particularly important if the founder intends to concentrate his assets on certain family members or if he wishes to support a charity, for example.

In addition, the establishment of a family foundation can also help to protect the assets from creditors. As long as the assets remain within the foundation, they cannot be seized by the founder’s creditors. This can be important for entrepreneurs who have a high personal liability risk or who operate in a particularly high-risk business field.

Tax advantages: Only 15% tax

FIV: Now to question that everyone is most interested in, what is it about “saving taxes” when you set up a family foundation?

IE: In Germany, the establishment of a family foundation can bring tax advantages. The foundation is subject to corporate income tax, which can lead to a lower tax burden compared to other types of companies such as a GmbH, which have to pay trade tax. In addition, donations to the foundation may be tax-deductible under certain conditions.

FIV: Can you explain that in more detail?

IE: Simply put:

You can legally lower your tax burden to 15% with a family trust.

FIV: With a family foundation you can legally reduce your tax burden in Germany to 15%, ok. How does that work and what does a “normal” GmbH pay?

IE: The establishment of a family foundation can indeed help to reduce the tax burden in Germany to 15%.

This is the corporate income tax levied on the income of the foundation.

In contrast, a “normal” GmbH must pay trade tax, which can vary depending on the municipality. In addition, there is corporate income tax, which is levied on the income of the GmbH and is usually higher than for a family foundation.

However, the 15% corporate income tax for family foundations only applies up to a certain exemption amount and depends on various factors such as the size of the assets and the structure of the foundation. But it pays off, especially over the years.

But we don’t want to go into too much detail!

Inheritance tax and gift tax

FIV: As far as I know, you also have advantages in terms of inheritance tax and gift tax, especially through the allowances, which are taxed more favorably and can thus be paid in year after year. Can you tell us something more about this?

IE: Unlike charitable foundations, the family foundation does not enjoy any automatic tax benefits – that’s just in advance. Nevertheless, it can offer great potential for tax optimization compared to other corporate forms.

Transfer of assets to the foundation

When assets are transferred to the foundation – in particular when they are established – gift or inheritance taxes are incurred. In the case of a “normal” private foundation, the unfavorable inheritance tax class 3 is generally applied. In the case of a family foundation, on the other hand, the relationship between the founder and the entitled family members (beneficiaries) is decisive. If only the spouse and the descendants (children, grandchildren) are beneficiaries, the favorable tax class 1 applies.

Here’s a tip on the side, we also have a handy gift tax calculator. Here you can calculate what typically has to be taxed.

However, in the case of family foundations, a fictitious inheritance is assumed every 30 years, on which inheritance taxes are incurred. Here, an allowance of 800,000 euros applies, the so-called double child allowance. Otherwise, the general regulations for inheritance and gift taxes apply. However, if there are favored business assets, the corresponding exemption discount can lead to significant tax savings.

If you would like to learn more about this, please visit our blog. I can recommend, among others, the articles Asset Protection and Vermögensschutz durch Familienstiftungen by our foundation expert.

FIV: Thank you for the insight into family foundations!

Summary: 10 Learnings on the Family Foundation

Let’s briefly summarize the most important facts for you.

	Learning foundation
1	A family foundation provides asset protection and estate planning for family assets and businesses.
2	A family foundation can protect assets from divorce, inheritance and break-up, thus avoiding inheritance disputes.
3	A family foundation provides a clear structure for managing and distributing assets and can preserve family peace.
4	By establishing a family foundation, family members can be provided with binding security during the founder’s lifetime.
5	A family foundation can circumvent the claim of children or parents to the inheritance (claim to a compulsory portion).
6	A family foundation can protect assets from creditors.
7	A family foundation can be used as an instrument of social responsibility.
8	A family foundation is subject to corporate income tax and can thus reduce the tax burden to 15%.
9	A family foundation offers great potential for tax optimization compared to other corporate forms.
10	In the case of a family foundation, the relationship between the founder and the beneficiary family members is decisive for the tax classes for gift or inheritance taxes.

Who belongs to which tax bracket?

Spouses and spouses always belong to tax class I and therefore always have an allowance of up to 500,000 euros. Children and stepchildren as well as grandchildren, parents and forefathers also belong to tax class I. Children enjoy a tax-free allowance of 400,000 euros, grandchildren have a tax-free allowance of 200,000 euros, parents and forefathers have a tax-free allowance of 100,000 euros.

If the inheritance is not a normal inheritance but a gift, parents and forefathers are assigned to tax class II. This reduces the tax-free amount from 100,000 euros to 20,000 euros. In addition, divorced spouses, nephews, nieces, step-partners and siblings also belong to tax class II. All other persons are automatically assigned to tax class III.

Inheritance tax on real estate: How high is it?

If you want to calculate the inheritance tax when inheriting real estate, you subtract your allowance from the market value of the property and get the taxable amount.

If the amount is 75,000 euros, persons in tax class I must pay 7% inheritance tax. If the heir is in tax class II, the inheritance tax increases to 15% and in class III 30% is due.

If the amount involved is up to 300,000 euros, 11% is due in the case of tax category I. For tax class II, the inheritance tax is already 20%, for tax class III it is 30%.

For an amount up to 600,000 euros, the inheritance tax in class I amounts to 15%, in tax class II 25% is required and in tax class III 30%.

If the amount reaches up to 6,000,000 euros, 19% is due for persons in tax class I, and 30% must be paid for persons in tax classes II and III.

If we speak of an amount up to 13,000,000 Euros, 23% inheritance tax must be paid in the case of tax class I, 35% in the case of tax class II and 50% in the case of class III.

For amounts up to EUR 26,000,000, 27% tax is due for tax class I, 40% for tax class II and 50% for tax class III.

For even higher amounts, the tax rates are 30% for Class I, 43% for Class II and 50% for Class III.

Inheritance tax real estate: When is it due?

In principle, tax liability is due on all inherited assets. In the case of real estate, however, there are exceptions that benefit the heir. For example, taxes are not due if the heir himself lives in the inherited property for ten years.

How can the market value be determined?

The market value of a property reflects the sale value of a property. The valuation takes into account the respective market conditions and several methods are used. The determination of the market value depends on whether the property is traded on a functioning market. This is not the case, for example, in a foreclosure auction, which is why properties can often be acquired for far less than their actual market value. In this case, the market value is below the actual market value.

The procedures by which fair value is determined:

The settlement procedure

The comparison procedure is based on the market value of similar properties that have only recently been sold in a similar location. The basis for this is the purchase price collection of a local appraisal committee of the city. All purchase prices of any real estate are recorded in this collection. This procedure can deliver very good results if a sufficient number of reference values are available.

The capitalised earnings method

This method is often used if the property is a commercial property or if the house is rented out. Here, the market value is calculated from the land value and the building income value. The building income value is made up of the rental income and the costs of management. If the risk of loss of rent is very high or the maintenance costs are immense, the market value may be surprisingly low.

The asset value method

This is the valuation method that is most widely used. In the asset value method, the market value is the sum of the asset value of the building and the land value. The market value is calculated on the basis of the original construction costs, from which the values for signs of wear and tear are deducted. This method is mostly used by banks.

It is not uncommon for appraisers to use two of the methods and then report the average of the two as the fair market value.

There are also other factors that influence the market value of a property.

The market value in turn changes due to supply and demand. The higher the demand for a property, the more the market value of the property increases. Whether the location of a property is in demand can be seen from the standard land value. This is derived from other property sales. If it is a detached property, the year of construction, the living and usable space, the condition of the building and various building features are important in addition to the standard land value.

Anyone who engages two appraisers will notice that the market value can differ from appraiser to appraiser. This shows that there is always a certain amount of room for interpretation when it comes to market value.

How can I find out the contract value of my property?

The first step of owning the property is to hire an appraiser in the first place. If the market value is important for the sale of a property, a free appraisal of a property may already be sufficient. If, on the other hand, it is a matter of divorce or inheritance, a written opinion regarding the market value is usually necessary.

The owner should have the following documents ready for the appraiser:

• The extract from the land register
• The floor plans of the house
• The site plan
• A living space calculation
• The energy certificate
• A description of the building

A professional appraiser is therefore advisable, as it is hardly possible for a private person to determine the real market value alone. Every fourth seller tends to overestimate the value of his property and thus gets in his own way when selling his house. Buyers, on the other hand, are naturally interested in keeping the purchase price as low as possible and therefore focus their attention on defects.

You can find more tips here:

• Real Estate Magazine
• Broker Magazine

Pass on right during lifetime

Without a will, the estate will be distributed according to the rules of legal succession. However, this is not always in the interest of the testator. If a will exists, the estate can be distributed differently than provided for by law and even persons who are not blood relatives can inherit. The drawing up of a will is therefore not only important to regulate the last will and testament exactly, but also to avoid disputes in the family.

Frequently asked questions are above all:

• What is the compulsory portion of the heir?
• What is the compulsory portion of the heir?
• What does the spouse inherit?
• What is the legal succession?

The will regulates everything

A will overrides the legal succession and can therefore determine a new succession. The testator determines who is to inherit. If several persons are named, the assets are usually divided according to quotas. Writing a will also enables the testator to leave individual things to certain persons, such as a car, jewellery or real estate. However, these are not legally regarded as heirs, but as bequests. In order to avoid disputes about the estate, the estate can be distributed in a will in such a way that no points of dispute can arise.

Wills can be drawn up with or without a notary. If a will is drawn up without a notary, a number of things must be taken into account. The author must be at least 16 years old and “testable”, i.e. in full possession of his intellectual powers. The will must be written by hand, because computer printouts are not sufficient as a valid will. If the will is several pages long, each page should be numbered, stapled together and each page uniformly dated and signed. A clear heading, like “Testament” or “My Last Will” is recommended to make the purpose of the writing clear.

However, if a will is drawn up with the help of a notary, this means that the testator has given his last will and testament verbally to a notary for the record. This is particularly important if real estate is part of the estate, as either a certificate of inheritance or a notarial will is required for transfer to the land register. If a notarial will exists, the heirs are spared the costly and time-consuming inheritance certificate procedure.

Heaving without a will – the legal succession takes effect

The legal succession regulates both the order of the heirs and the individual quantities that are inherited. First the next relatives inherit, like children and grandchildren and afterwards the more distant relatives, like nephews and nieces. Closer relatives generally exclude more distant relatives from the succession. The rate at which the individual heirs inherit is documented in the certificate of inheritance. The legal succession depends on the Parantel or order system. It divides the relatives into different orders. According to this, children and grandchildren of the testator belong to the first order. Parents, siblings, nieces and nephews of the testator are assigned to the second order. The third order includes grandparents, uncles and aunts as well as cousins of the testator. Spouses and registered civil partners are not regarded as relatives, but have the right of spouse inheritance. This gives them a special position and restricts the right of inheritance of the relatives. Relatives of the previous order always exclude relatives of a subsequent order from the succession.

The spouse

The spouse or registered partner is not considered a relative in the legal succession, but has a special position. If the deceased leaves behind both 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 divide the rest among themselves. If there are only second order relatives or grandparents, the spouse receives half of the estate and the second and third order relatives share the other half. If there are no relatives of the first, second or third order, the spouse inherits everything.

The first-order heirs

The children and grandchildren of the testator are counted to the first order. Nonmarital children born after 1 July 1949 are also entitled to inheritance. If a child of the testator and the spouse lives at the time of death, both inherit half. If several children live, the inheritance is divided between them and the spouse. If the deceased’s children have already died, the grandchildren inherit.

The heirs of the second order

If there are no children or grandchildren, the heirs shall be of the second order. The second order includes parents, siblings, nephews and nieces. If both parents of the deceased live at the time of death, the estate is divided equally. However, if one parent has already died, the descendants of that parent, i.e. siblings or nieces and nephews of the deceased, take this place.

Third order heirs

If the deceased leaves only heirs of the third order, the estate shall be divided as follows. The grandparents and their descendants shall inherit the estate of the deceased. If a grandparent is already deceased, the inheritance also falls to the aunts, uncles, cousins and cousins of the testator.

Adopted children

An adoption gives a child the legal relationship. If the child is a minor at the time of adoption, it acquires the legal status of a joint child of both spouses and thus belongs to the heirs of the first order. Thus not only the adoptive child inherits from the parents, but also vice versa. With the adoption, however, the child loses every claim, all rights and duty to the blood relatives and is therefore no longer entitled to inherit from the natural parents. This is not the case for adopted children who are of full age. The relationship to the biological parents does not expire and so an adopted child of full age can be entitled to inherit from up to four parts of the inheritance, the biological and the adoptive parents. However, there is no legal right of inheritance against the relatives of the adoptive parents.

Herit debts – reject inheritance or not?

An inheritance does not primarily mean wealth and new possessions. An inheritance is often burdened with debts and means a lot of responsibility for the heirs. After death, the heirs not only take over the assets, but also the rights and obligations of the deceased. If this includes debts, the heirs are also liable with their private assets. If it is clear from the outset that the debt is inherited, the inheritance can be rejected within the six-week period. If it only becomes apparent later that the estate is encumbered with debts, an application for insolvency can be filed. The private assets of the heir are thus protected and the debts only have to be repaid from the estate. If there is an inheritance case, the inheritance should be carefully examined and examined for debts. The inheritance can be refused by any heir. This is particularly useful if debts or real estate in need of renovation are part of the estate.

Reverse the inheritance – depending on the situation, sensible

The inheritance does not always provide only good things for the descendants. Even if many dream of riches and expensive jewellery, debts or dilapidated real estate can also belong to the inheritance. In such cases it is possible to reject the inheritance within a certain period of time and taking into account certain criteria.

No heir is obliged to accept the inheritance. This is possible above all for the protection of the heirs, because this gets not only the fortune, but also the debts of the deceased, for which it is responsible with the own private fortune. So before an heir is started or struck, each heir should first of all get a precise overview of the financial circumstances and debts of the deceased. These include bank balances, securities, valuables, land and real estate as well as funeral expenses, loans, maintenance arrears and compulsory portion claims. The costs of administering an estate or opening a will can also be added. If this examination reveals that there is more debit than credit, it makes sense to reject the inheritance. If the estate includes real estate in need of renovation, a detailed examination is also necessary. If the inheritance is taken up, a lot of money has to be invested in the renovation work, which can be very expensive depending on the case. So consider carefully whether or not you want to take up the inheritance in such a case.

Once an inheritance has been accepted or the deadline has been exceeded, there is usually no turning back. However, here again exceptions confirm the rule. In certain cases it is possible to withdraw from the inheritance afterwards. If, for example, it comes to light after acceptance of the inheritance that the estate contains a high credit of the deceased, of which you knew nothing until then, the acceptance of the inheritance can be challenged. As a prerequisite, however, you must have had comprehensive knowledge of the assets and debts of the estate. However, if the heir wishes to challenge the assumptions because the six-week period was not known or it was not clear when it would begin, a good lawyer can do the same.

Heirloom rejected due to overindebtedness

In the opposite case, there are also some possibilities. If the inheritance has been rejected due to over-indebtedness and it turns out afterwards that the inheritance does not contain as many debts as initially assumed, the rejection cannot be contested. However, if it turns out afterwards that securities or real estate belong to the estate of which you had no knowledge at the time of the disbursement, a challenge is indeed possible. The challenge must be made in writing and justified to the probate court within six weeks of the error being discovered.

Free heir’s allowance

In order to protect the heirs from a large financial burden, different tax rates and allowances apply depending on the degree of kinship. These allowances include various things that do not have to be taxed so that the heirs do not have to pay most of the tax, especially in the case of a large estate.

Financial relief for heirs

This includes the allowances to be paid if the partner or the children were dependent on the financial support of the deceased. For spouses, the pension allowance amounts to 256,000 euros provided the surviving spouse does not have a widow’s pension or a company pension for which no inheritance tax is payable. If such a pension is available, the value of the pension is determined based on the expected duration of the benefits and the benefit allowance is reduced by this value. For children, benefit allowances apply that are graduated according to the child’s age at the time of death. Infants up to the age of 5 years are entitled to a pension allowance of 52,000 euros. Starting from this point, the allowance falls by approx. 10,000 euros every five years. Children aged 20 to 27 can therefore claim a pension allowance of 10,300 euros, but these allowances are only relevant if the children do not have their own pension, such as an orphan’s pension.

The other allowances, in addition to the pension allowances, are regulated according to the degree of kinship and are independent of the surviving dependant’s pension or one’s own assets. Accordingly, spouses and registered civil partners inherit an allowance of 500,000 euros. Children of the deceased or grandchildren of the deceased, if their parents die before the inheritance, can claim an allowance of 400,000 euros. Grandchildren whose parents are still alive can claim an allowance of 200,000 euros. Great-grandchildren or the deceased’s own parents are entitled to an allowance of 100,000 euros. All other heirs can claim an allowance of 20,000 euros. So that as little tax as possible has to be paid in the case of inheritance, the testator can make important decisions long before death and determine them in the will.  Only what remains after deduction of the tax-free amounts from the estate is taxable. Each taxable acquisition is rounded down to a full 100 €. The individual tax rates for inheritance tax depend on the different tax classes of the heirs and are also graduated progressively.

Gifts and inheritance tax – the allowances

Inheritance tax and gift tax are closely linked. Almost the same allowances apply, but as in the case of inheritance, the tax-free allowances may only be transferred once every ten years. Testators who wish to reduce inheritance tax for their heirs must therefore start giving away their assets ten years before their death. In the case of patchwork families, it follows from this regulation that it may be sensible to adopt the spouse’s children in order to equate the tax allowances with those of the natural children. The adoption does not influence the succession to the other biological parent.

A gift thus actually makes it possible to save on inheritance tax. The testator must be aware of these possibilities and use them in a targeted manner in order to have to pay less of an inheritance tax. Nonmarital partners must bear in mind that even long-term civil partnerships only allow the given tax-free amounts if they are officially recognised, either by marriage or by registration of the partnership.

Duty part despite disinheritance – you have these rights

Basically every person can decide freely who he/she will appoint as his/her heir and whom he/she will disinherit. The testator does not have to justify in his will why he excludes a relative from the succession. However, an exclusion does not mean that the heir receives nothing, because every heir has a right to a compulsory portion. This claim must be requested by the heir himself, because these compulsory portion claims are not noted in the certificate of inheritance. If a testator determines a person as sole heir, this means on the one hand that he alone inherits the entire estate, but also that no one else should inherit who would actually be entitled to inherit.

Married couples can disinherit close relatives together in an inheritance contract or a Berlin will. In a classic form of the Berlin will, the spouses stipulate that the longer living partner is the sole heir and the children only inherit when both spouses have died. The parents disinherit their children until both have died. If someone is disinherited, the part of the inheritance that would have been due to this heir falls to the person who would have become the heir if the disinherited person had already died at the time of the inheritance.

In spite of a disinheritance, close relatives are entitled to a part of the property. This fact is based in law on the duty of care which the deceased has for his close relatives even after his death. However, this only applies to the next of kin, who are determined as follows according to the law: Close relatives include both legitimate, non-marital and adopted children, the spouse as long as the marriage is still effective at the time of inheritance, partners in a registered same-sex partnership and parents of the testator as long as there are no children. Grandchildren are only entitled if they have been excluded from the inheritance and their parents are no longer alive. Siblings and grandparents of the deceased are not entitled to a compulsory participation and are therefore not to be understood by law as close relatives. Anyone who is disinherited must assert a right to the compulsory portion himself against the other heirs. Under special circumstances, it is possible for parents to disinherit their children completely and also to withdraw the compulsory portion from them. This wish must be expressly ordered and justified in the will.

Preliminary inheritance and subsequent inheritance – determined in the will

The testator is free to determine the heirs and can therefore transfer his assets to several persons in a time transfer. The heir receives his inheritance only after another person, in this case the previous heir, has inherited it. The testator can, for example, choose an occasion or a time for the occurrence of the subsequent succession, for example the age of majority or the passing of the master craftsman’s examination. The previous heir and the subsequent heir are both legal successors of the testator, but do not form a community of heirs in which they would inherit at the same time, but inherit at a different time due to the cause of the testator. The heir has an expectant right to the subsequent inheritance and thus the heir of the previous heir lapses in the event of subsequent succession, the latter ceases to be the heir and the inheritance accrues to the subsequent heir. In the event that the subsequent heir has already died at the time of the subsequent inheritance, the testator should make provisions and name further subsequent heirs.

Pre-heirship and post-heirship are often used by spouses to ensure that all joint assets remain in the family. The spouses nominate the other as the previous heir and the common children as the subsequent heirs. Even in the event of a remarriage after the death of a spouse, the assets cannot be bequeathed to the new spouse.

The communities of heirs – open communication and agreement

A community of heirs describes all the heirs of a testator. This comes into force when there is more than one heir and a community of heirs is automatically formed. The community of heirs, however, loses its effect at the beginning of an inheritance dispute. However, a dispute does not necessarily have to occur in a community of heirs. Since there are often disputes about the objects of inheritance in communities of heirs, many communities of heirs still exist many years after the death.

Discussing a community of heirs

In the ideal case, the heirs of a community of heirs pay any debts quickly from the estate and then dissolve the community of heirs by distributing the surplus according to shares. However, this is often not the reality. Disputes within the community of heirs often ensure that these remain unresolved for years after the inheritance. Every member of such a community of heirs has the right to demand dissolution at any time, even without good reason.

pay debts and distribute inheritance

In order for a community of heirs to be dissolved without disputes, it is advisable to follow certain steps. From the correct valuation of the estate to inheritance taxes, there are important formalities to be observed.

Pay the debts of the estate

The debts of the estate can be paid from the estate by the heirs of the community of heirs. It is not uncommon for objects belonging to the estate to be sold, such as real estate or land.

The indivisible objects sell

If a real division is not possible for certain objects, such as a property in the community of heirs, the heirs may have to sell or force the object to be auctioned. In order to do this, a realistic selling price must first be determined. If there is no agreement here, a division auction can be initiated by one of the heirs. Distribute the divisible objectsThe heir is primarily to be divided in nature by the heirs. Each heir can therefore take objects from the estate for himself in agreement with the other heirs. Money and securities can be divided by the community of heirs according to the respective shares.

The donations and endowments take into account

If an heir has received benefits or gifts from the testator during his lifetime, these may be subject to compensation. Gifts that are subject to extinguishment increase the estate mathematically and are deducted from the recipient’s inheritance quota. Each heir may ask the others for information on such benefits so that they can be taken into account correctly.

Consider the tax office

An inheritance is always subject to inheritance tax. However, some things from the inheritance can be deducted from the tax, such as the cost of the burial or fees for opening the will.

Calculate the discount

A community of heirs cannot be divided until the estate has been determined. The heirs receive most of the information from the bank where the deceased had the accounts or deposits. In order to obtain access to these, a certificate of inheritance or a will with a court opening record is required. However, the debts are also part of the estate. In order to determine the complete estate, the debts and the assets should be compared and balanced.

The notary helps

If an agreement cannot be reached, a notary can be called in by the community of heirs. The notary mediates between the heirs in order to reach an agreement as quickly as possible. However, it should be borne in mind that such assistance is associated with some costs.

Consider the nursing services

If a child has cared for the deceased parent during his or her lifetime for no consideration, compensation can be claimed for this. This must be commensurate with the duration, scope and value of the estate.

The partial auction – the last resort for communities of heirs

Objects, such as real estate or land, often give rise to disputes in communities of heirs. The ideas of how to deal with the joint property are too different and the parties cannot agree. Every heir has the right at any time to demand a dispute of the community of heirs and thus to force its dissolution. In such a case, a partition auction may be the last possibility to settle the disputes and resolve the community of heirs.

The partition auction involves some risks which should be well thought out in advance. The real estate could be sold below value and lead to low profits for the heirs. There are some alternatives that exclude these risks. The property can be sold privately, saving on application, legal and attorney fees. In addition, the heirs can choose the buyer themselves and thus ensure that the property is not sold below value.  Another alternative is voluntary auctioning. The community of heirs can turn to a public auctioneer who organises and conducts an auction. The advantage for the heirs is that the minimum bid can be determined by the heirs themselves and there is therefore no risk of an auction below value. In both cases, however, the community of heirs must agree unanimously to the sale of the property.