Berlin Will

Berlin Will - A joint will in which spouses or registered partners name each other as sole heirs and designate joint final heirs (usually their children), who inherit only after the death of the surviving partner.

What exactly does a Berlin will mean?

The Berlin will is the most common form of joint will in Germany and is regulated by § 2269 BGB. Its core principle: If one spouse dies, the surviving spouse initially inherits the entire estate-including real estate, bank accounts, and securities accounts. The children receive nothing in the first instance and are only considered as final heirs after the death of the second parent.

This arrangement primarily serves to provide financial security for the surviving spouse. Particularly in the case of real estate ownership, the aim is to prevent the surviving partner from having to sell the shared home in order to pay out the children’s shares of the inheritance. The legal basis is the inheritance law in the German Civil Code (BGB), whereby both the unified solution (the survivor becomes the sole heir) and the separate solution (the survivor becomes only a preliminary heir) are possible. In practice, the unified solution is chosen much more frequently, as it allows the survivor greater freedom of action.

Important to know: The Berlin will creates a so-called binding effect (Section 2270 BGB). After the death of the first partner, the surviving spouse can generally no longer unilaterally change the reciprocal dispositions-in particular, the appointment of the final heir. This binding effect protects the children but significantly restricts the surviving partner’s freedom to dispose of their estate.

A frequently underestimated risk concerns the statutory share: Despite a Berlin will, children have a legal claim to a statutory share amounting to half of the statutory inheritance. If a child asserts this claim upon the first death, it can lead to significant liquidity problems-especially if the assets are predominantly tied up in real estate.

Penalty clause, binding effect, and tax aspects

To prevent children from claiming their statutory share after the first death, many Berlin wills include a penalty clause for the statutory share. It states: If a child claims their statutory share upon the death of the first parent, they will also be limited to the statutory share upon the death of the second parent and will not become the sole heir. In practice, this clause acts as a strong deterrent and protects the surviving partner. However, it should be formulated with legal precision, as flawed penalty clauses may be invalid.

From a tax perspective, the Berlin will has a well-known disadvantage: Since the entire estate first passes to one spouse and only then to the children, the children’s tax-free allowances (400,000 euros per parent) are not utilized upon the first death. In the case of larger real estate estates-as is increasingly common in the Nuremberg metropolitan region-this can lead to a higher total inheritance tax burden than with a staggered inheritance. To mitigate this disadvantage, many owners combine the Berlin will with lifetime gifts with a reservation of usufruct-the owner transfers the property to the children during their lifetime but retains the right to live there for life.

The Berlin Will and Real Estate - Special Considerations

The following points are particularly relevant for real estate assets. The Berlin Will must clearly stipulate whether the property passes in kind to all final heirs upon the death of the second parent (in which case a community of heirs is formed) or whether one final heir receives it and the others are paid out. A lack of such a provision often leads to disputes and forced sales. We recommend including a distribution provision in the will that clearly defines how the real estate is to be handled after the death of the last surviving parent-for example, through a bequest arrangement in which one child receives the property and pays out the siblings.

Practical Tip for Property Owners in Nuremberg and Franconia

Especially in the Nuremberg metropolitan region, where property values have risen significantly in recent years, we recommend that owners have their Berlin will regularly reviewed for its tax implications. A home in neighborhoods such as Erlenstegen, Mögeldorf, or in the sought-after areas of Fürth and Erlangen can quickly exceed the joint tax-free allowance for spouses (500,000 euros) today-especially if additional capital assets are present. Our network of experts recommends consulting a specialist attorney for inheritance law or a notary in the region at an early stage and examining the combination of a Berlin will and a lifetime gift with a reservation of usufruct. This allows for optimal use of tax-free allowances while still ensuring the surviving partner is protected.

Frequently Asked Questions

Can we create a Berlin will without a notary?

Yes, a handwritten Berlin will is legally valid if one spouse writes the entire text by hand and both partners sign with their full names, the place, and the date. We nevertheless recommend notarization, as it prevents formal errors, the will is automatically filed with the probate court, and the notary points out tax and legal pitfalls. Notary fees are based on the value of the estate-for real estate assets of 500,000 euros, they typically range from 1,000 to 2,000 euros and are money well spent.

What happens to our property if a child claims their statutory share?

If a child claims their statutory share upon the first death, the surviving partner is obligated to pay half of the statutory inheritance share. With three children, this would amount to approximately 50,000 euros per child upon the death of a partner with an estate valued at 600,000 euros (e.g., real estate). If the assets are predominantly tied up in real estate, this could, in the worst-case scenario, force a sale. A penalty clause for the statutory share in the will and sufficient liquid reserves are therefore essential, particularly when dealing with real estate assets.

Can the surviving partner sell the property freely?

Under the “unitary solution,” the surviving spouse becomes the sole heir and may, in principle, freely sell, encumber, or gift the property-they are the sole legal owner. However, they are bound by the appointment of the final heirs and may not gift the assets with the intent to disadvantage the final heirs (Section 2287 of the German Civil Code). Residual heirs may challenge abusive gifts after the death of the last surviving spouse-for example, if the property was transferred to a new partner below market value.

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