Anyone who wants to plan their estate can achieve a great deal with just a few sentences\u2014but can also trigger unintended consequences. Typical mistakes can be avoided if important issues are considered early on and addressed in a legally unambiguous manner.<\/p>\n
Reliance on the statutory order of succession\u00a0<\/strong><\/p>\n It is a common misconception that the surviving spouse automatically inherits the entire estate upon the death of the other spouse. In fact, it is extremely rare for a spouse to inherit the estate alone!<\/p>\n Let\u2019s take a married couple, Anna and Thomas, with two children. Thomas dies without leaving a will. This does not automatically make Anna the sole heir. The two children also inherit alongside her. Under the standard statutory rule of community of accrued gains, the surviving spouse inherits only half of the estate alongside the children according to the statutory order of succession; the other half goes to the children. Anna then forms a community of heirs with her children. This can lead to significant difficulties, especially if the children are still minors or have their own ideas about the distribution of the estate.<\/p>\n The order of statutory succession can be even more surprising for childless married couples. If Thomas dies without children and without a will, not only his wife Anna but also Thomas\u2019s relatives may inherit\u2014in particular, his parents or, if one parent has already died, that parent\u2019s descendants, such as Thomas\u2019s siblings or their children.\u00a0<\/p>\n Dr. Sophie Burchardi, Executive Director of the Hamburg Chamber of Notaries, emphasizes: \u201eIn most cases, it\u2019s worth not simply leaving the succession to the law, but rather setting forth one\u2019s own wishes in a will.\u201c However, there are some pitfalls to watch out for here as well.<\/p>\n A signed will is not automatically valid<\/strong><\/p>\n Mistakes are often made right from the start regarding the form of the will, because a holographic will must be written and signed entirely in the testator\u2019s own handwriting. A document drafted on a computer, then printed out and signed, is not sufficient\u2014it is invalid. If spouses draw up a will together, one of them must write the will by hand, but the other must also sign it.<\/p>\n Ambiguous Appointment of an Heir<\/strong><\/p>\n People who draw up a will usually want one thing above all else: to provide clarity and spare their loved ones from disputes later on. Yet even seemingly simple wording often leads to questions of interpretation and conflicts.<\/p>\n The following example illustrates the pitfalls that may lie in wait: A mother writes in her will:\u00a0\u201eI bequeath my house to my daughter. My son inherits my bank balance.\u201c What sounds clear at first raises important legal questions: Did the mother name only her son as an heir and simply leave a bequest to her daughter? Or did she intend to make both children heirs?<\/p>\n The legal distinction is significant: An heir becomes the universal successor to the deceased, and all rights and obligations are thereby transferred to the heir\u2014including any additional assets not mentioned in the will. A bequest, on the other hand, generally only grants a claim to a specific financial benefit. If the terms \u201einherit\u201c and \u201ebequeath\u201c are used incorrectly in a will, this can lead to protracted legal disputes.<\/p>\n Unintended Binding Effect\u00a0<\/strong><\/p>\n In the case of joint wills\u2014which can be drawn up jointly by married couples (but not by unmarried couples)\u2014many married couples are unaware that certain provisions cannot be changed by the surviving spouse after the death of the first spouse. A classic example is the so-called \u201eBerlin will,\u201c in which a married couple name each other as sole heirs and their children as residual heirs. If, after the death of the first spouse, the surviving spouse wishes to amend the will\u2014for example, to bequeath a larger share to one of the children or to name a new partner as an heir\u2014the binding effect of the joint will may prevent this. Whether this is the case depends on the specific terms of the joint will.<\/p>\n Notarial advice on the secure execution of a person's last will and testament\u00a0<\/strong><\/p>\n Notaries ensure that a person\u2019s last will and testament is recorded in a legally unambiguous and valid manner. They advise on possible options for drafting the will and explain the legal consequences of the chosen provisions.<\/p>\n Another practical advantage of a notarized will becomes apparent after the testator\u2019s death: It generally replaces the certificate of inheritance as proof of succession if the order of succession is clearly established by the will. This spares the heirs the need to go through the process of obtaining a certificate of inheritance, which is often time-consuming and costly.\u00a0<\/p>\n More information and images on this and other topics can be found on the website of the media association of the chambers of notaries at:<\/i><\/p>\n