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
- an heir (Erbe) may want to avoid personal liability for estate debts,
- a beneficiary (heir or legatee) under a Will or an intestate heir (gesetzlicher Erbe) may want his interest in the estate to pass to his offspring in order to save German inheritance tax,
- the testator has ordered durable execution of the estate (Dauertestamentsvollstreckung) with regard to the share of a forced heir and that forced heir wishes to claim the forced share (Pflichtteil) instead of beeing an heir without the right to administer the estate or
- the beneficiary is be indebted / receives social welfware payments and, thus, would not benefit from the inheritance.
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 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 delivery of a copy of the Will by the probate court (Nachlassgericht). 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 probate court. 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.
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, 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.
