Lawyers for Disputes regarding Wills
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Lawyers for Disputes regarding Wills

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Disputes between heirs about the distribution of the estate are not uncommon. Often, superficial differences of opinion lead to an inheritance dispute that becomes bogged down, which end can hardly be foreseen. This leads to enormous emotional and financial burdens for those involved, and even family ties get broken. If no amicable solution can be reached, the path to court is ultimately taken.

There are many causes for disputes in the case of inheritance. A community of heirs is created between several co-heirs, which harbours the considerable potential for conflict. If the heirs disagree about the administration of the settlement of the estate, this can lead to protracted litigation. However, external pressure can also arise because the testator may have excluded legal heirs from the succession, who now assert their claim to the compulsory portion (“der Pflichtteil”) against the community of heirs. Frequently, the will is also called into question, for example, due to the presumed testamentary incapacity of the testator or possible formal errors, which in turn can cause disagreements.

In the case of inheritance, diverse and complex questions and problems can arise, whereby an additional challenge is often the high degree of emotionality. Our lawyer for inheritance law, Dr Thomas Bichat, is ready to advise and represent you in inheritance disputes on all legal issues arising with sensitivity and assertiveness.

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Our Services for Disputes regarding Wills

Schlun & Elseven supports you in legal disputes regarding inheritance.

Our inheritance lawyers will advise you comprehensively.

Contesting the Will

Voluntary succession takes precedence over intestate succession. Although it is advisable to regulate one’s inheritance using a testamentary disposition, the last will of a testator often leads to disappointment for the surviving dependants. This disappointment applies particularly to legal heirs who the testamentary disposition has passed over. The passing over of a beneficiary of a compulsory share of which the testator had no knowledge or became entitled to a mandatory share only after the will was drawn up may constitute grounds for contesting the will (§ 2079 BGB).

The validity of a will can also be doubted for other reasons. A ground for contest exists, for example, if the testator was mistaken about the content of his testamentary disposition or did not intend to make a declaration of this content at all (§ 2078 (1) 1 BGB). Furthermore, an error of motive on the testator’s part can also lead to contestability, i.e., they were mistaken about a reason underlying their will (§ 2078 (2) BGB). The testator´s testamentary capacity can also be questioned. This is the capacity to make, amend or revoke a will. Anyone who has total legal capacity is also capable of making a will. In addition, minors have limited testamentary capacity when they reach the age of 16. However, the will of someone incapable of making a will can also be valid if they have acted at a time of clarity.

After the testator’s death, all persons who directly benefit from the revocation of the will are entitled to contest the will (§ 2080 (1) BGB). The consequence of contesting the will is that it will be eliminated. It then will be replaced by the rules on intestate succession or, if applicable, by an earlier will revoked by the contested will.

Interpretation of the Will

A will can also cause problems if it is ambiguous or incomplete. This can lead to a heirs’ dispute about what precisely the testator wanted to declare with his will. Wills drawn up without expert assistance are often open to interpretation. But even a notarised will can cause difficulties. After several years or even decades that may have passed since the testament was drawn up, a lot may have changed by the time the testator dies. The result is ambiguity.

It is advisable to have the will carefully examined by a lawyer for inheritance law in such cases. To interpret the will, it is necessary to determine the testator´s true intentions when the will was made. For this purpose, the wording is relevant and circumstances outside the will if there are still doubts regarding the interpretation, the statutory rules of interpretation of § 2066 ff. BGB apply. Our lawyers for inheritance law will be happy to help you determine the testator´s will and interpret the testamentary disposition accordingly.

Legal Succession and Beneficiaries of the Compulsory Portion (der Pflichtteil)

Intestate succession applies if the testator has not recorded their last will in a testamentary disposition. This is determined according to the provision of the German Civil Code, more precisely §§ 1924 to 1936 BGB. However, problems and disputes can arise when determining the legal heirs if there are ambiguities regarding the testator’s relationship. This may be the case, for example, with children born outside of marriage.

In an inheritance case with a foreign connection, it may be questionable whether the German inheritance law is applicable at all. According to the EU Inheritance Regulation, succession because of death is generally governed by the state’s law in which the deceased had their last habitual residence (Art. 21 EuErbVO). Our lawyers are active throughout Germany and can also support you in cases with an international dimension.

If the testator has made a will, this can have consequences for persons being excluded from the succession, becoming heirs according to the legal succession. If these are so-called beneficiaries of the compulsory portion (“der Pflichtteil”) (§ 2303 BGB), they claim the critical portion. These are namely the descendants, the parents, and the spouses of the registered partner of the deceased. The claim to a compulsory portion is not a legal share of the inheritance but a monetary claim against the heir or the community of heirs amounting to half of the value of the legal share of the estate (§ 2303 (1) BGB). To assert the claim to the compulsory portion, the beneficiary of the compulsory portion has a claim to information on the inventory of the estate against the heirs (§ 2314 BGB).

Conflict Potential of the Community of Heirs

The community of heirs is a community of joint owners. This means that the estate is the common property of the heirs (§ 2032 BGB). Until the inheritance is divided, one heir alone cannot dispose of individual items of the estate. Instead, there must be agreements among the heirs. About the administration of the estate, it is also stipulated that the heirs must, in principle, collaborate (§ 2038 ff. BGB). This includes all measures that may serve the preservation, use and increase of the inheritance. It is therefore evident that disputes often arise.

Since the community of heirs is not based on a voluntary association of heirs, it is also referred to as a compulsory community. Frequently, each of the heirs pursues their own goals so that disagreements arise that need to be resolved with a view to the settlement of the estate. This is because the community of heirs is designed to be dissolved so that each co-heir can, in principle, demand the dissolution of the estate at any time by § 2042 (1) BGB. Disagreements arise when it has to be decided which co-heir receives which object of the estate and any compensation claims. The primary aim is to reach an amicable settlement using a settlement agreement. In principle, this is possible without any formalities but requires, for example, notarial certification of the estate, including real estate.

If the negotiations prove to be very trying and it seems impossible to reach a consensus, the payment of one’s share of the inheritance can be considered. This can be done, for example, using a partition in which one heir leaves the community of heirs in return for a compensation payment. The respective share of the inheritance then accrues to the remaining co-heirs. However, this solution also requires negotiating skills and patience to agree on appropriate compensation. Furthermore, it is possible to sell one´s share of the inheritance to a third party to avoid disputes within the community of heirs. In this case, the other co-heirs have a right to first refusal (cf. §§ 20342037 BGB). However, even in this regard, disagreements can become a problem, as they can in principle only exercise their right of first refusal in their entirety so that all must agree.

Action for Partition of the Estate

If an agreement among the heirs seems impossible, an action for the settlement of the estate (also called a partition action) can be considered as a last resort. In this way, the division of the estate is enforced by the courts. In a partition plan, the heir who files the action determines how the inheritances are divided among the co-heirs. If the court allows the action, the estate is divided according to the division plan submitted.

An action for dividing an estate can end an inheritance dispute that has become bogged down. However, this does not mean that the conflicts among the co-heir are resolved. On the contrary, the fronts can harden further, and family relations can be deeply shaken. In addition, there is the disadvantage of high costs such as lawyer fees and court costs. Partition auctions can also lead to lower proceeds being obtained for real estate or other estate items. Therefore, an action for partitioning the estate is not a quick way out. Irrespective of the fact that court proceedings are often protracted, a declaratory action may be required first. This is because the status of the heirs and the distribution of the estate among the heirs must already be established for the movement for the division of the estate to be successful.

An action for the settlement of inheritance should therefore be carefully considered. Instead, it is advisable to reach an out-of-court settlement with the other co-heirs and rely on consideration and compromise in the negations. If you are nevertheless considering an action to settle an inheritance, our lawyers for inheritance law will advise you comprehensively on this possibility to end an inheritance dispute. We will assess your chances and risks and ensure that your activity meets all the requirements for your success.

Disputes over the Execution of the Will

The execution of a will can also harbour a high potential for conflict. The testator appoints the executor by will or unilateral disposition in the contract of inheritance. This is a person of their trust who ensures the execution of their last will. An experienced lawyer for inheritance law can be appointed as executor. Frequently, however, a testator also appoints a person from their family circle. Even a co-heir can be selected as executor. Especially in such a case, a dispute can quickly arise between the executor and the other heirs. However, the executor is supposed to ensure a smooth distribution.

The executor’s task is to carry out the testator’s testamentary disposition and, in the case of several heirs, affect the distribution (§ 2203 f. BGB). In the meantime, they must administer the estate. In addition, it is also possible to entrust an executor exclusively with the administration of the estate (§ 2209 BGB). In this case, the executor is obliged to administer the estate properly towards the heirs. However, it is not uncommon for there to be disagreement about the proper administration, which can lead to problems. Furthermore, there is an obligation to draw up a list of the estate and various duties to provide information.

If the executor culpably fails to fulfil their obligations, they must compensate the heirs (§ 2219 (1) BGB). Furthermore, the heirs and beneficiaries of the compulsory portion can apply to the dismissal of the executor with the probate court. However, there must be good cause for the probate court to dismiss the executor (§ 2227 BGB). This includes gross breaches of duty or the inability of the executor to manage the estate properly.

Another frequent cause of disputes is that heirs cannot effectively dispose of objects subject to the will’s execution (§ 2211 (1) BGB). As long as the executor executes the will, there is no possibility of intervening. The executor´s remuneration can also be a point of contention. This is especially the case if the testator has not fixed their amount. In this case, the executor is entitled to an appropriate remuneration under § 2221 BGB, and determining this amount is based on many factors. The heirs are jointly liable for the remuneration. Our lawyers will provide you with expert support in all disputes connected to the execution of a will.

Expert Legal Advice in Inheritance Disputes by Schlun & Elseven

An inheritance dispute is a very emotional and complex matter. Therefore, it is advisable to seek advice and support from an inheritance lawyer. Our lawyers will carefully examine and, if necessary, interpret the will or other declarations of the testator to provide clarity. In addition, we will answer any legal questions that may arise and help you pursue your concerns. If you do not want things to get to that point in the first place and want to avoid future disputes about your inheritance, we will advise you on appropriate preventive measures and support you in implementing them.

It is advisable to first strive for an amicable solution for inheritance disputes. Negotiating with the co-heirs about the estate settlement accordingly requires empathy and patience, especially assertiveness. If an agreement appears to be impossible, an action for the estate settlement can serve as a possible way out. Schlun & Elseven will carefully examine your case and assess your chances and risks in court. Our lawyers will represent you in inheritance proceedings with the necessary assertiveness and instinct. We are not only active in Germany but can also assist you in cases with an international dimension.

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Practice Group: German Inheritance Law