Nobody likes to think about death. We cannot control what happens in our life. But we can be prepared in case something happens. This is the reason why we have insurance. Making a will in Germany is the same. I made a will not for myself, but for my loved ones. I want to be prepared and give my loved ones the best even if I pass away. In this article, you will learn about the different types of wills in Germany, the cost of making a will, how the inheritance law in Germany works, some tips about making a will in Germany, and more.
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Why I made my will already in my thirties
To be honest, I have never thought about making a will before. I mean, I am in my 30s! Who will consider things like that? Until one day, my friend told me that she was making a will in Germany. She is a Canadian living in Germany. At first, I found it a bit weird. I thought she was worrying too much. We are still young, right? I thought making a will was only for old people who are dying soon.
But then I kept hearing more and more from her about making a will in Germany. She told me that making a will is not for herself, but for the benefit of her husband and her two kids. In case something happens to her, her husband can have access to her assets immediately which is essential for him to raise their kids. And in the unlucky event that if something happens to both her husband and her, her will can provide guidance about who should take care of her kids. She can pick a guardian of her choice who can act in the best interest of her kids.
I was impressed by how thoughtful she was and how she always put her kids first in her priority. She didn’t just take care of her kids now. She also prepared for the worst to make sure that her kids can still receive the best if she is not here anymore. I guess this is mother nature, right?
I was shocked to learn the inheritance law in Germany
So, I felt a bit guilty that I was not well-prepared like her for my own kids. And I also started to do some research on the inheritance law in Germany. Before doing the research, I just supposed that in case my husband passes away, I will simply inherit his assets and move on. Okay. In reality, it is not as simple as that. Especially when we live in Germany.
Read also: Moving to Germany – Complete Expat Guide
What happens when one dies without a will in Germany?
Without a will, you may be left to a bad surprise in case something happens to your spouse. Basically, not everything from your spouse will be left to you in case he passes away. Not necessarily. If he doesn’t have a will, you may have to share his estate with other people.
Estate is all the money and property owned by a person, especially at death. There are different categories of people who have the right to inherit the estate. If you do not have an antenuptial agreement (Ehevertrag), you can inherit 50% of your spouse’s estate. An antenuptial agreement is a written contract entered into by a couple before the marriage. It can indicate what happens to the assets in case of divorce or death.
Now you may be wondering if you have an antenuptial agreement or not. Don’t worry. If you have not done anything specifically upon your marriage, your marriage in Germany would be automatically recognized as Zugewinngemeinschaft. It means that there is no Ehevertrag and you will inherit 50%.
How about the other 50%?
I was shocked to learn that I could only inherit 50% of my husband’s estate! Somehow, I thought that the spouse would inherit it all. Okay. The rest 50% would be inherited by other family members depending on their categories. The first category is the first one to inherit. Only when there is no living person anymore in the first category, the people in the second category can inherit. And only when there is no living person anymore in the second category, the people in the third category can inherit.
Sounds complicated, right? It is easier to understand this when we look at some examples. The below examples show who can inherit the estate when
- a person passed away without a will, or
- a person has a will but it is invalid, or
- a person’s will does not cover all his estate.
Category 1 – Children and grandchildren
If you don’t have an antenuptial agreement, you can inherit 50% of your spouse’s assets. The rest of the 50% will be inherited by the children of your spouse, or the grandchildren (in case the children are not alive anymore).
In the below example, the husband has passed away. The wife inherits 50% of his estate. They have two kids and two grandkids from kid #2. So, each kid will inherit 25% of the total estate. Since the kids are still alive, the grandkids cannot inherit anything. In case kid #2 is not alive, the two grandkids can inherit kid #2’s share. It means that each grandkid can inherit 12.5%.
This is one of the reasons why I want to make my will early. I have two small kids. Imagine if something happens to my husband, I will not be able to inherit all his assets to raise our kids. I am not allowed to take my kids’ shares. Their shares need to be secured for them until they are 18 years old and then they can decide on how to use the assets. But this can potentially create problems for me. Especially because we own a house in Germany together.
If my husband is not here anymore, I may want to sell the house and move to a small flat to finance our living. But it may get complicated when I do not own our house 100% (as our kids inherit part of the house). Besides, why should my kids own part of our house? I and my husband work our ass off to finance our house together. I see no reason why my kids suddenly get their shares when I am still alive.
Category 2 – Parents and siblings
If a person has no family members in category 1 (he has no children/ grandchildren), his estate will then be inherited by family members in category 2. If you don’t have an antenuptial agreement and your spouse has no kids, you can inherit 75% of your spouse’s assets. The remaining 25% will be inherited by his parents.
In the below example, both your father-in-law and mother-in-law are still alive. So, each of them will inherit 12.5%. In case your mother-in-law is not alive, her share will be shared by her children (your brother-in-law and sister-in-law, each 6.25%). In the case your sister-in-law is not alive anymore, her 6.25% will be shared by her children (the niece and nephew of your spouse, each 3.125%).
The law has no consideration whether you or your spouse are close with these family members or not. They will be automatically entitled to the estate once your spouse passes away in this case. Can you imagine that when your spouse passes away with no children, you may have to share his assets with his parents or siblings all of a sudden?
Category 3 – Grandparents, aunt, and uncle
In case there is no living person in category 1 and category 2, the estate can be inherited by the spouse completely. If the person who passes away has no spouse, his estate will be inherited by distant family members like his grandparents, aunt, uncle, or cousins. But these cases are rare.
There can be horrible consequences without a will
As you see, people in the above category can become joint owners of the estate, together with the spouse. The German inheritance law states who have the right to inherit and how much they can inherit. These people will need to agree among themselves on how those assets will be distributed.
It is especially complicated with real estate. One person may want to sell the flat, while another may want to rent it out or even move in the flat. When there is no agreement, the flat may have to be sold below the market value. As you can see, there can be horrible consequences in terms of the administration and settlement of the assets without a will in Germany. This can be prevented by making a will.
Who should make a will?
In my opinion, you should consider making a will if you
- plan to retire in Germany
- have a lot of assets, especially if you own a property
- live with your partner but are not married
- have children, as you can specify how much each should get
- want to legally secure your assets for your partner/ children
Different types of wills in Germany
Below are some common types of wills in Germany.
A holographic will must be handwritten. You cannot write it on your computer, even if you print it out and sign it afterward. You can write your holographic will in any language you like. The will must be signed by you. The date and place should also be indicated. No notary is needed for writing a holographic will. You can write it up all by yourself.
Advantages of a holographic will
The good thing about a holographic will is that you don’t have to pay for a notary to write this. You can just write your will anytime and anywhere. You can also change your will easily if you want.
Disadvantages of a holographic will
You need to make sure that you comply with any formal requirements when writing a holographic will. Even if you make only a small mistake, your entire will can become invalid. If you want to write the will by yourself, you should do some research on the internet about how you should write it. There are many different samples online that you can refer to.
Using your own words and sentence can cause confusion and potential problems. If your sentences are unclear or contradictory, your will may be interpreted differently. If you are not familiar with the inheritance law in Germany, you may be trying to pass on your assets in an illegal way, which may make your will invalid.
If you want to be safe, you can also book a consultation appointment with a notary. You can ask the notary questions relating to inheritance law in Germany. We recommend using GetSafe law protection insurance because it covers the consultation cost with a legal professional concerning inheritance law. It also partially covers the court costs in case a dispute over inheritance law arises. Besides, Getsafe offers English support and requires no paperwork. You can get a 15 EUR discount by using this special link. .
If you need to find a lawyer, you can search for one online here.
Besides, if you do not file your will with an official government organization, you cannot be sure that your will can be found after your death. Even if it may be found, the finder also may not present your will. So, after writing up your will, it is better to deposit it at the probate court.
A public will is made by the testator with a notary. Unlike a holographic will, a public will does not need to be handwritten. The notary will forward the public will to the probate court so it can be deposited there.
Advantages of a public will
As the notary will write the will, you can be sure that the format and wording of the will meet the legal requirement. The precise wording in the will avoids any confusion for the heirs and you don’t have the risk that someone may misinterpret what you really want. You can also consult the notary on questions relating to inheritance law in Germany. As mentioned before, your consultation cost may be covered by legal insurance.
A public will does not need to be probated. It means that heirs can inherit the estate quickly without needing the probate court to review the will. In this sense, a public will can be cheaper in the end as it avoids any potential costly dispute between the heirs and also any probate or court cost in the future.
Disadvantages of a public will
A public will costs more than a holographic will at the moment when you make it. This is because you have to pay for the notary now. The cost of a public will depends on the value of your assets.
Besides, it is not as convenient if you want to change your will in the future. You will need the help of a notary again in case of any changes.
Berliner testament is a special form of a joint will where the couple chooses each other as his/her sole heir. And children can only inherit when both spouses have passed away.
A joint will must be signed by both spouses and can only be revoked by both spouses jointly. A Berliner testament can become invalid in case of divorce.
Advantages of a Berliner testament
It is possible to write a Berliner testament by hand and no notary needs to be involved. A Berliner testament can ensure that the surviving spouse can inherit everything and secure him/her financially.
Disadvantages of a Berliner testament
A joint will is interdependent and it must be changed by both spouses. It means that if one spouse dies, the surviving spouse will not be able to change the testament anymore. This can be quite inflexible.
Besides, since the surviving spouse will first inherit, and the children will inherit after the second spouse dies, the estate may be taxed twice.
Moreover, as the children will inherit once both parents die, the value of the estate can be higher in this case. There is a higher chance that the value of the estate is higher than the tax threshold (and becomes taxable).
Inheritance law in Germany
According to the law in Germany, both assets and any outstanding debts will be passed directly to the heirs when a person dies. Assets include money, property, and any valuable items. There is no executor or no court supervision needed. Since debts can also be transferred, the heirs have the right to reject the inheritance if they want. If nobody has the right to inherit the estate, or if the estate is rejected by all the heirs, it will be passed to the German state.
Note that if you write a will to exclude any legal heirs, they can still sue and make a claim on your assets. However, in this case, they can only receive half of what they would have got without your will.
For example, in my case, we write a will that I will be the sole heir in case my husband passes away. Without this will, my children would have gotten 50% of the estate. Even though the aim of our will is to exclude our kids completely, my kids will still be entitled to 25% if they disagree and sue (hopefully they won’t!). This is because certain privileged individuals have a compulsory share (Pflichtteil) on the estate according to German law. But even if the kids do sue, they will get much less comparing to the case when no will is made.
The inheritance law in Germany can be very different than that of your home country
For example, when I look up the inheritance law from my hometown Hong Kong, the wife has actually much more claim on the estate than any others. Even though the chance of death is low at a young age, a few people I personally knew did die at my age sadly. Cancer. Car accident. You never know. To avoid any bad surprise when an accident happens, I think it is a good idea to make a will if you plan to stay in Germany for the long term.
How much is it to make a will in Germany?
The price of making a will in Germany with a notary is governed by law. The more assets you have at the time when you make your will, the more the notary can charge you. It also depends on if you are making an individual will or a joint will. A joint will costs double the price of an individual will.
Price charged by the notary
The worth of your assets
|€ 10,000||€ 75||€ 150|
|€ 25,000||€ 115||€ 230|
|€ 50,000||€ 165||€ 330|
|€ 250,000||€ 535||€ 1,070|
|€ 500,000||€ 935||€ 1,870|
As you can see, it is pretty cheap to make a will if you don’t have many assets. That is why I recommend making your will as early as possible before you have all the assets. In our case, we made our will last year and we have just bought a house. We have paid off only a very small part of our mortgage in Germany. However, even though the calculation of our asset worth does take into consideration the liability from our mortgage, the calculation of our house’s value only considers the mortgage liability partially. Therefore, we were still being assessed to have more than 500,000 Euros worth of assets (even though in reality we don’t!). So, we reached the price of 1,870 Euros.
On top of that, since we got married in New Zealand, we have a New Zealand marriage contract that does not explicitly mention if we have an antenuptial agreement or not. To be safe, our notary suggests putting in an extra paragraph in our will to indicate that we have no antenuptial agreement. To add this paragraph, he charged us another 1,870 Euros!
In addition to all the other administrative costs, we paid almost 4000 Euros (!) for our testament. If we had known it before, we would have made our testament right after our marriage. Back then, we had no money and no properties. It would have been MUCH cheaper. So, my advice: make your testament early, especially before you buy any properties!
Gifts made by the testator
What about giving away your asset as a gift to avoid inheritance tax while you are still alive? If you give a gift within 10 years before your death, this gift will still be considered as part of your estate when you die.
As mentioned before, certain people like your kids have a compulsory share of your estate. Let say if you decide to give a gift to a third person within the 10-year time frame before your death. In this case, your kids can still claim a share of this asset even it has been gifted to someone else for some years. However, when calculating the compulsory share, 10% of the gift value will not be used in the calculation for each year passed during the 10-year time frame.
That is why it is important to plan early. For example, my parents-in-law have already gifted their house to their kids a few years ago. If they live for more than 10 years starting the time when they gifted their house, the house will not be counted as part of the estate and their kids may be able to save some inheritance tax.
Note that the 10-year rule does not apply to gifts giving to a spouse. In that case, the kids can still claim the gift even though it was given 10 years before the death.
How about gift tax?
In Germany, there are also taxes on gifts. Luckily, there is a tax allowance. For example, if a person receives a gift from his parents, he will only need to pay gift tax if the value exceeds 400k Euros. This same tax allowance also applies to inheritance tax.
So, if you have assets of 600k EUR, it may be wise to give part of it to your kid 10 years before you die. If the gift is less than 400k EUR, your kid does not have to pay gift tax. And when you die, the value of your estate will also be lower due to the gift, i.e. below 400k EUR. And your kid can then save on the inheritance tax.
Therefore, early tax planning is key!
Read also: Tax Return in Germany – Guide for Expats
Guardian for small kids
In our will, there is one session where we can name a guardian for our kids. We want to do this because if we die without a will, our city will decide the fate of our kids. It will appoint a guardian for our kids, who may be a stranger and not necessarily a relative from us.
In the past, I thought that if the parents die, the custody of the kids will automatically go to other blood relatives like their grandparents and uncles/aunts. In Germany, it is not that simple.
For example, we live very far away from our parents and other blood relatives. They are in the north and we live in the southern part of Germany. If we both die, the city where we live currently will decide based on what they believe is the best interest of our kids. They may think that since our kids were born and raised in the southern area, they should stay here in the same school, surrounded by the same group of friends. If that is the decision, the grandparents and other blood relatives may not get custody of the kids.
Name a preferred guardian for our kids in our will
Even if the court will appoint one of our relatives to be the guardian, the process may take some time. To shorten the process, and make sure the guardian of our choice is picked, it is best to name a preferred guardian for our kids in the will.
For us, we decided to name two guardians for our kids in the will. In case my husband and I are not here anymore, these people have the right to become guardians for our kids and can decide for our kids’ future.
Note that it does not mean that they have to do that. They only have the right to be guardians. So, in case something happens, they can decide if they want to take care of our kids. If they cannot, they can still decide to appoint a guardian from our city to do the work.
Appoint an executor (Testamentsvollstrecker)
We haven’t done this but I know that it is also possible to appoint an executor in the will. This is more for people who have complicated situations. For example, if someone runs a company and wants to plan what to do in case he passes away. Maybe the heirs are too young and not yet capable of running the company yet.
Or maybe the testator owns a house. It is often hard to have an agreement between the heirs on what to do with a house. Maybe one wants to move in by himself. Another person may want to sell it or rent it out. Therefore, the testator may appoint an executor to avoid any potential conflicts between the heirs.
4 Best tips about making a will in Germany
1. Making gifts early
As mentioned before, any gifts made 10 years before death will be included as part of the estate. To avoid inheritance tax, the testator should plan to give away the gifts early.
2. Bank account
If you have not made a will yet, there is a simple way to ensure that you can easily access your partner’s bank account in Germany in case he or she passes away. This was what I and my husband did too to get fast access to each other’s money if needed.
Note that when a person dies, his bank account will be locked. That’s why simply exchanging your user name and password with your spouse will not work. An easy way is to have a joint bank account with your partner so that both have access to the account.
If a joint account is not an option, you can sign a form at your bank to give authority (Vollmacht) to your spouse to access your bank account. With this form, your spouse can access your bank account even after your death and the bank account will not be locked. It was very easy and free of charge.
3. Make your will early
You never know what will happen. Making your will early is a considerate act for your partner and dependents. No one likes to think about death. But having a will ready can give you and your dependents peace of mind.
Besides, if you plan to make your will with a notary, it is cheaper to do it early before your asset grows. As mentioned before, we paid almost 4000 Euro to make our will with a notary. It would have been much cheaper if we made it right after our marriage before we bought our house.
Note that you don’t have to change your will later in case you have more kids in the future. In a standard will, it is stated that the estate will be inherited by all the kids in an equal share. It means that if you have more kids in the future, each of them will get a smaller share.
4. Power of attorney
A power of attorney (Vorsorgevollmacht) is useful to authorize another person to make legal decisions on your behalf if you are not capable to do so anymore. In the unlucky event that if your spouse is not able to make decisions anymore (due to serious sickness or a bad accident), you will be able to make medical decisions for him if he names you in a power of attorney.
Sometimes, hard decisions need to be made (e.g. removing life support). You may make that decision for your partner if he authorizes you with a power of attorney. This is what my parents-in-law have done. They authorized each other to make such medical decisions. They also clearly communicate with their children about what they want in such a situation. This is to avoid any potential conflict among the children in case such a decision needs to be made.
You may not make legal decisions for your partner
Note that if your partner is on life support and still alive, you cannot inherit his estate before the death. So, if you do not have a joint bank account or he did not give you the authority to his bank account before, you may have difficulties accessing his assets and it can be financially challenging.
Besides, if your partner is in a coma, many things need to be done but he is not able to do them. For example, paying the rent, agreeing to certain medical operations, or opening letters. Without a power of attorney, the court will appoint a caretaker (a stranger) to make those decisions.
The shocking thing for me is that even the spouse and the children are not allowed to make legal decisions for the sick person in Germany. I always assumed that the spouse and the children would automatically be allowed to make decisions legally in such cases. But it is not the case in Germany. In Germany, either the one who is appointed by the power of attorney or the caretaker who is appointed by the court can make such decisions legally.
So, if you want to be prepared for all kinds of situations, a power of attorney will be needed.
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Please be aware that this article is intended to provide you a brief overview of the inheritance law in Germany. This is based on my personal experience when making a will in Germany. Please note that I am not a lawyer and I am not qualified to give you any legal advice according to German law. Our blog accepts no liability in any case. If you need more details and specific advice on your personal situation, we would highly recommend you to consult a lawyer.
Have you made your will already? Why or why not? Leave a comment below and share your experience!
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