September 08, 2023 /
If an inheritance occurs in the family or among friends, it is usually associated positively. However, many people do not know that you can also inherit debts. Under certain circumstances, it may therefore make sense to waive the inheritance. Our lawyers at the law firm work in inheritance law, among other things, and can give you advice on the correct procedure in the event of an inheritance.
Refusing an inheritance means not accepting the rights and obligations that arise when the inheritance is accepted and thus renouncing the inheritance. It is not possible to choose only the pleasant part and enrich yourself with the assets while not accepting the debts. If you accept an inheritance, the assets and debts, i.e. the entire estate, are always transferred to the recipient, who becomes the legal successor of the deceased.
This explains why it can make sense not to accept an inheritance. For example, if the testator was heavily in debt during their lifetime and the inherited debts threaten their own existence. The situation is similar if real estate is inherited and you cannot afford the urgently needed maintenance and this exceeds the value of the property.
Legal basis & order of succession
In principle, inheritance law is primarily regulated in Book 5 of the German Civil Code (BGB) in Sections 1922 to 2385. We have summarized the most important information for you.
- In principle, inheritance can be made with or without a will
- If a will exists, it supersedes the legal succession
- If there is no will, statutory succession provides for various orders
- The first order comprises all descendants of the deceased, the second order his parents and the third order all other relatives
- If the deceased is married, the widow or widower generally receives 50% of the estate in the case of intestate succession, while the other half is divided equally between any children.
- Unmarried partners or divorced partners receive nothing in the case of intestate succession
When it makes sense to waive the inheritance
- Over-indebted estate: the most common and obvious reason. If it becomes apparent that the testator is over-indebted, it simply makes no sense to accept the inheritance
- Personal reasons: If the relationship with the testator was complicated during his or her lifetime, it may make sense to waive the inheritance. This can also be useful to prevent potential conflicts in a community of heirs.
- Heirs in personal insolvency: If you are currently in personal insolvency and you receive an inheritance, it is transferred to the creditors for repayment.
- Unclear estate: If the estate contains many components that are difficult to value, such as licenses, patents or business interests, as well as liabilities, it may make sense not to accept the inheritance
We explain to our clients in inheritance law that there is no obligation to accept an inheritance. So if you do not see any personal advantage for yourself, you should turn down the inheritance. However, be aware that you will then be waiving your right to the entire estate. If you turn down the inheritance, it will go to the next person in the line of succession. Ultimately, the state inherits if there are no other heirs, but unlike natural persons, it can waive its right to inherit the debts.
The process of the inheritance settlement
If a related or otherwise known person dies, a period of six weeks runs from the moment of knowledge of the inheritance. In the case of close relatives, this may already be the date of death. It is possible to withdraw from the inheritance during this period. Important: Only if the testator has drawn up a will that has been submitted to the probate court will a letter be sent that sets the deadline in motion. If no will was drawn up during the deceased’s lifetime, the six-week period runs from the time the deceased became aware of the death. If the deadline expires, the inheritance is deemed to have been accepted.
Six weeks is not a particularly long period of time for the upcoming waiver. So, despite your grief, act quickly and get an overview of the assets as soon as possible. If the debts exceed the assets, the debts will pass to you as the heir. Information about the deceased’s assets can be obtained from the bank, for example, even without a certificate of inheritance (see BGH ruling October 2013).
If you come to the conclusion that you should disclaim the inheritance, the next step is to go to the probate court within the six-week period. The probate court is usually the local court in the place where the deceased was last registered.
Declaration of inheritance
It is important to know that you must appear in person at the competent probate court. It is therefore not sufficient to declare informally by letter that you will not accept the inheritance. Please also note that you are not obliged to give reasons for leaving an inheritance, but depending on the situation, it may make sense to emphasize why you do not wish to accept an inheritance. A fee is also payable, which is calculated according to the amount of the inheritance, but costs at least €15. If you renounce the inheritance, it may fall to underage heirs. Depending on the situation, a declaration of inheritance must also be made for them. If necessary, a notarized declaration can also be drawn up. However, this must be certified by a notary.
Special situations
In many cases, the inheritance is limited to a single person. Within many families, underage beneficiaries are also involved, but they cannot make their own legally binding declarations of inheritance. This must be done by the parents. So if you have decided that neither you nor your minor children will inherit, you must declare for yourself and for your children that you will not inherit.
Rendering of already accepted goods
As a declaration of waiver always means that the entire estate is waived, this declaration must be given sufficient consideration. If items have already been taken from the estate, these must be returned after the waiver.
Minors and the bequest of an estate
The most important information on the waiver of inheritance for minors is regulated directly in Section 1942 of the German Civil Code (BGB). This stipulates that you must be of legal age to waive an inheritance as soon as the testator has died and the inheritance is known. If, for example, the whole family does not wish to accept an inheritance, the parents must do so on behalf of their children. This is particularly important to bear in mind, as otherwise the succession will go to your children when you declare the waiver of inheritance.
Withdrawal from the declaration
If you renounce your inheritance, this is a binding declaration, so weigh up your decision carefully within the six-week period. It is only possible to withdraw from this waiver under certain circumstances and this must be well justified.
Valid reasons may be if the decision to waive the inheritance was not made freely because you were threatened and intimidated. If this can be credibly demonstrated to the probate court, it is possible to withdraw from the waiver. Another reason may arise if new information about the assets of the estate subsequently becomes known.
Alternatives to waiving an inheritance
If it is out of the question for you to waive the inheritance, but you also do not want to take on the debts of the deceased, you still have the option of appointing an estate administrator. This is particularly useful if the administration of the estate turns out to be complicated and the consequences are unforeseeable. With estate administration, you also limit liability.
If it turns out after accepting the inheritance that the estate is in debt, there is also the option of estate insolvency proceedings. This also limits your liability and you do not have to pay the debts privately. Your personal financial situation is also not examined during the proceedings
When should you instruct a specialist inheritance lawyer?
In order to take all aspects of inheritance law into account and to meet the statutory deadlines, we always recommend consulting a specialist inheritance lawyer in these matters. This is particularly useful in the case of complex estate administrations, communities of heirs, an unclear will situation or a deceased testator abroad. Consult a lawyer specializing in inheritance law if you want to be on the safe side personally, financially and legally.