Appointment of an heir

Appointment of Heirs - The appointment of heirs is the explicit designation of one or more persons as heirs in a will or inheritance contract. Through this appointment, the testator determines who is to receive all of their assets or a specific portion thereof after their death. In real estate law, the appointment of heirs is of particular importance, as real property-unlike personal property-cannot be transferred informally and often constitutes the largest component of the estate.

Forms of Appointment of Heirs

The appointment of heirs can take various forms:

1. Will (§ 1937 BGB):

• Holographic will: handwritten and signed by the testator
• Public will: drawn up and notarized before a notary
• Joint will: drawn up jointly by spouses or registered life partners (Berlin will)

2. Inheritance contract (Section 1941 BGB):

• Notarized
• Binding on the testator - cannot be unilaterally revoked
• Common in business and real estate families to secure succession

3. Intestate succession (no appointment of heirs):

• If there is no will, statutory succession applies pursuant to §§ 1924 ff. BGB
• First benefits descendants (children, grandchildren), then parents and siblings, then grandparents

The appointment of an heir may be subject to conditions or stipulations (e.g., “I appoint my son as heir if he uses the property himself”).

Appointment of Heirs and Real Estate: Special Considerations

Specific points must be observed regarding real estate in an estate:

• Land registry transfer: After the opening of the estate, the land registry must be corrected. Heirs may apply for this based on the certificate of inheritance or a notarized copy of the will (Section 82 of the German Land Registry Act (GBO)). The transfer is free of charge within two years of the opening of the estate.
• Community of heirs: If multiple heirs are appointed, a community of heirs is formed. In the case of real estate, this community must make decisions unanimously-sale, rental, or management require the agreement of all co-heirs.
• Legally reserved share: Disinherited relatives (children, spouses) may claim their legally reserved share (half of the statutory inheritance share). If real estate constitutes the primary assets, this can lead to liquidity problems.
• Inheritance tax: Real estate is valued at its market value (fair market value) for inheritance tax purposes. Exemptions vary depending on the degree of kinship.

Pre-bequests and partition orders as supplementary measures

In addition to simply naming heirs, the testator has other tools at their disposal to ensure a fair distribution of real estate:

Order of Division (§ 2048 BGB): The testator may specify in the will which property is to be allocated to whom as part of the estate settlement. While this does not alter the inheritance shares, it regulates the allocation of specific assets. In cases involving multiple properties, this can prevent heirs from ending up in dispute.

Bequest (§ 1939 BGB): Instead of appointing heirs, the testator can bequeath a specific item-such as a particular apartment-to individual persons without making them full heirs. The legatee has a contractual claim against the heir for the transfer of ownership of the bequeathed item.

These instruments are particularly useful for real estate portfolios to avoid disputes within the community of heirs.

Practical Tip for Property Owners in Nuremberg and Franconia

In the Nuremberg metropolitan region, the single-family home or owner-occupied condominium is the most valuable asset for many families. We strongly recommend that property owners arrange for the appointment of heirs in a notarized will or inheritance contract-the sooner, the better.

Especially for married couples with joint real estate, the “Berlin will” offers a simple solution: The surviving spouse becomes the sole heir, and the children inherit only after the death of the second parent. In the case of multi-family homes or real estate portfolios, it is essential to consult a specialist attorney for inheritance law. The Nuremberg Notary Office and the Nuremberg Bar Association offer relevant advisory services. We assist you in properly addressing the real estate-specific aspects of your estate planning.

Frequently Asked Questions

Can I name anyone as an heir, even non-blood relatives?

Yes. The freedom to make a will in Germany allows you to name any natural or legal person (including associations and foundations) as an heir. However, relatives and spouses have a statutory right to a compulsory share, which cannot be excluded by a will.

Does the appointment of heirs have to be notarized?

Not necessarily. A holographic will (written entirely by hand, dated, and signed) is legally valid without a notary. For complex situations-particularly involving real estate, business succession, or blended families-we nevertheless recommend the notarized form, as it is more secure and easier to enforce in the event of inheritance.

What happens to a property if there is no will?

In the absence of a designated heir, statutory succession applies. The property then passes to the statutory heirs (spouse and children)-as joint property of the community of heirs. Since communities of heirs often lead to disputes over real estate, we recommend a clear testamentary provision.

How can I ensure that a specific heir receives the property?

Through a combination of designating heirs and a partition order. In the partition order, you can specify that, upon the distribution of the estate, Heir A receives the property in Munich and Heir B receives the condominium in Nuremberg. Additionally, a right of first refusal for certain heirs or a right of residence for relatives can be stipulated in the will.

What is a reservation of usufruct, and when is it advisable for real estate?

A reservation of usufruct allows the donor or testator to transfer a property to the next generation during their lifetime while retaining the right to continue using the property or receiving rental income. This is a particularly common planning tool in cases of anticipated succession. The usufruct is entered in the land register and reduces the value of the gift for gift tax purposes. In Nuremberg and Franconia, this instrument is frequently used when parents wish to transfer an apartment building or an owner-occupied property to their children without giving up the ongoing income or the right of residence.

Inheritance Tax on Real Estate: Exemptions and Tax Burden

Inheritance tax is particularly relevant for real estate assets, as real property is valued at its market value (fair market value under the Valuation Act). The tax exemptions depend on the degree of kinship: children receive 400,000 euros per parent (usable every ten years), spouses 500,000 euros, and grandchildren 200,000 euros. For owner-occupied residential property, a full tax exemption under Section 13(1)(4b) of the Inheritance Tax Act may be claimed under strict conditions (owner-occupancy by the heir for at least ten years). This exemption does not apply to multi-family homes and rented properties; here, early tax planning-ideally with the involvement of an advisor specializing in inheritance and tax law-is essential to minimize the tax burden on the heirs. In the Nuremberg metropolitan region, where real estate values are substantial, significant inheritance tax liabilities can arise without proper planning.

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