Disclaiming an inheritance under German law

Disclaiming an inheritance under German law

There are many reasons why a beneficiary of a German estate may wish to disclaim his/her interest in the estate. The article outlines the requirements for a valid disclaimer and links to further information.

Reasons for disclaiming an Inheritance in Germany

There are many reasons why a beneficiary may wish to disclaim an interest in a German estate, in particular  

Requirements for a Valid Disclaimer by an Heir

Under German law, the estate passes automatically to the heir (Erbe) subject to the right to disclaim the inheritance. See § 1942 of the German Civil Code (BGB). The requirements of a valid disclaimer are set out in §§ 1943 BGB to 1957 BGB. 

When a Disclaimer is barred

The heir cannot disclaim the inheritance if

  • he has accepted the inheritance or
  • the period for disclaiming the inheritance has expired. See § 1943 BGB.

Acceptance does not necessarily have to be expressed, but can also be determined from any action or declaration implying that the heir intends to keep the inheritance, e.g. application for a certificate of inheritance (Erbschein).

The deadline for a valid disclaimer of inheritance (Ausschlagung) is generally 6 weeks. See § 1944(1) BGB

The period extends to 6 months, if the decedent`s sole residence was in Germany or if the heir was not in staying in Germany (irrespective of his/her actual residence)  at the time of death. See § 1944(3) BGB

The period for disclaiming the inheritance begins on the date on which the heir obtains knowledge of the devolution of the estate and of the reason for his entitlement. See § 1944(2) BGB. In some situations, the deadline for the renunciation of the inheritance (Erbausschlagung) is further prolonged. See § 206 and 210 BGB

If the heir is called to inherit under the terms of a Will, the period does not begin before the opening of the Will (Testamentseröffnung). See § 1944(2) BGB

Validity as regards to Form and Filing of the Disclaimer

A valid disclaimer must be made through a declaration to the German probate court (Nachlassgericht). However, the heir does not have to travel to the competent probate court, but can notarize the disclaimer declaration in front of a German notary (Notar) or a German Consul. See § 1945 BGB. The German Consul generally does not file the document with the Court, but simply provides the original (and a first certified copy) to the applicant, who must send it to the Court. 

Partial and Conditional Disclaimer

With exceptions, the disclaimer must be in whole and unconditionally. See § 1950 BGB. However, it is possible to agree that a lump sum payment will be granted in return for a person disclaiming the inheritance. This is often done in order to achieve a reduction of the German inheritance tax. For further information, please read the article Disclaiming an inheritance in order to avoid German inheritance tax. 

Effect of a Disclaimer

If an inheritance is effectively disclaimed, the heir is considered predeceased for purposes of determination of the heir. See § 1953 BGB. As a consequence, children of the heir who disclaims the inheritance automatically become heir unless they also disclaim the inheritance. If the children are minor, the parents cannot disclaim the inheritance on their children's behalf without the consent of the court. However, if the child only becomes heir because one of the parents has disclaimed the inheritance and the parents are not co-heirs, he may disclaim the inheritance without approval of the guardianship court.

Disclaimer for a Minor

The parents need court approval for a disclaimer in the name of their child. However, if the child is only called to inherit as the result of the disclaimer of inheritance by a parent, the approval is only required if the parent was entitled together with the child. See § 1643 BGB

Rate this article
 
 
 
 
 
 
 
5 Rates (100 %)
Rate
 
 
 
 
 
 
1
5
5
 

Do You have any Questions?

We look forward to assisting you. For the sake of simplicity and efficiency, we request that you use our contact form for your inquiry and describe the matter as clearly as possible. In addition, you can include relevant attachments. After submitting your inquiry, we will contact you either by telephone or e-mail within one working day. If we can assist, we will suggest a time and date for an initial consultation. Of course, you can also contact this firm or a particular attorney directly to make an appointment for a personal consultation or telephone consultation (find contact details here). Please be advised that no attorney-client relationship is created by sending us an email or filling out this contact form. For information on our fees, please click here.  

Formular
captcha
Attach documents to your message to us (max 5 MB).