Testaments, or wills, are made in writing and the formal requirements are strict.
The formal requirements of testaments must be taken seriously, as case law shows very clearly that defective testaments have almost systematically been considered invalid. The law contains provisions relating to the written form of the testament, its verification by two qualified witnesses, and its signing.
Rights of ownership to property, as determined by will, gives the beneficiary the widest possible property rights over the property left to him or her by the will. The beneficiary receiving the right of ownership to property is liable to pay inheritance tax.
As its name suggests, a right of possession and a right of use as determined by the decedent’s testament give the beneficiary the right to possess and use the property he or she receives under a testament. The beneficiary does not pay inheritance tax on the rights to property he or she inherits, instead the beneficiary of the right of ownership is liable for the inheritance tax. Such wills are generally made for the benefit of a spouse.
A testament can also be a so-called general legacy will or a special will. The most important difference between the classifications of wills is whether or not the will gives the beneficiary a participating interest in the estate.
A general legacy will can provide for the entire estate, a part of it or the part that remains after the other provisions have been fulfilled. An universal beneficiary under such a testament is treated as a shareholder of the estate.
A special will is an order that assigns to a specific beneficiary, for example, a specific item of property or a specific amount of money. A legacy is completed from an undistributed estate. The beneficiary is not a shareholder of the death estate.
The beneficiary under the testament must serve the testament on the heirs in a verifiable manner if he or she wants the testament to be executed. Alternatively, the will can be renounced if the beneficiary does not wish to accept it.
The heir must invoke the invalidity of the testament by informing the beneficiary of his or her claim for a legal share if the testament prevents or restricts its execution.
The heir does not have to accept the will, but the will can be contested by bringing an action against the beneficiary under the testament in the district court within the prescribed time limits. The grounds for contesting a testament are specified in the Code of Inheritance.
A testament may be contested and declared to be invalid:
Sometimes, it can also happen that the heirs disagree about what is stipulated in the testament. The content of the testament may be contradictory or open to interpretation.
In general, ambiguities can be avoided by having the testament drafted by a specialised lawyer. However, it is possible, for example, that the testament was drawn up several years before the death of the testator and that circumstances have changed to the extent that it is not possible to execute the will as it stands. In such a situation, the will must be interpreted.
The interpretation of the will can be contested in court, but more usually it is the appointed estate distributor who interprets the will. The most important consideration in the interpretation is to have due regard to the testator’s will and intentions.
With more than twenty years of experience, we offer our clients a personalised and client-oriented service in various areas of family property law. Whether your matter falls under family law or inheritance law, we always handle it efficiently, without forgetting the human aspect.
The area of family law usually includes financial matters relating to marriage and cohabitation, as well as child custody, living arrangements, right of access and maintenance.
Before proceeding with the distribution of the estate, a deed of estate inventory, which is a list of the deceased’s assets and liabilities, must first be drawn up and the estate must be settled. Only then can an agreement on the distribution of the estate be concluded.
Inheritance tax planning emphasises the importance of properly prepared documents in good time. A continuing power of attorney is a document that allows you to take care of your own affairs over your lifetime well in advance. You can plan for the distribution of your assets and their tax treatment by having a comprehensive deed of gift and/or testament in place.