testator

Testator - A testator is the person who, upon their death, transfers their assets-including any real estate, land, and real property liens-to their heirs. In inheritance law, the term serves as the counterpart to “heir”: while the heir receives the assets, the testator is the person from whom they originate. The testator’s legal status is active during their lifetime (drafting a will, making gifts, disposing of assets) and expires upon death, at which point the estate passes to the heirs.

The Testator’s Legal Status During Their Lifetime

During their lifetime, the testator has extensive freedom over their assets:

Freedom to make a will (Section 1937 BGB):

• The testator is free to determine who his heirs shall be
• He may stipulate bequests, conditions, and requirements
• He may disinherit persons who would otherwise be heirs by law-but may not exclude them from the statutory share

Gifts inter vivos:

• The testator may gift portions of their estate during their lifetime (Section 516 BGB)
• Gifts of real estate require notarization and registration in the land registry
• Gifts made within the last 10 years prior to death are offset against the statutory share (Section 2325 BGB)

Powers of Attorney and Advance Directives:

• General Power of Attorney: Authorizes a trusted person to conduct legal transactions during the testator’s lifetime
• Durable Power of Attorney: Applies in the event of legal incapacity; real estate transactions can also be addressed
• Living Will: Addresses medical decisions, not assets

Testators and Real Estate: Special Considerations

If real estate is part of the estate, specific points must be considered:

• Land registry correction: After the opening of the estate, the land registry must be transferred to the heir(s) within two years; this period is free of charge. After that, land registry fees apply (Section 60 GNotKG).
• Current Lease Agreements: Lease agreements entered into by the decedent are automatically transferred to the heir by law (Section 566 BGB - “Purchase does not terminate the lease”)
• Mortgage Liabilities: Mortgage liabilities registered in the land registry remain in effect; the heir is liable for the secured loans
• Inheritance tax: Real estate is valued at the tax assessment value (generally close to the market value); depending on the degree of kinship, tax exemptions ranging from 20,000 to 500,000 euros apply

Estate planning for real estate owners: What the decedent should arrange

Proper estate planning by the testator avoids disputes and saves costs. The following points should be addressed:

Allocation of specific properties: Who receives which property? A distribution order in the will can specify that Heir A receives the family home and Heir B receives the condominium. While this does not change the inheritance shares, it regulates the distribution.

Settlement of statutory share claims: If there are disinherited children or other beneficiaries entitled to a statutory share, the testator must verify in advance whether sufficient liquid assets are available to satisfy these claims-without having to sell the property.

Usufruct and right of residence: The testator may reserve a right of usufruct or a right of residence in the will or a gift agreement. This ensures that, even after transferring the property during their lifetime, they remain entitled to use it or receive rental income.

Practical Tip for Property Owners in Nuremberg and Franconia

We recommend that property owners in Nuremberg and the metropolitan region address estate planning early and proactively. A clear will or an inheritance contract-ideally notarized-saves heirs significant disputes and costs. Especially in the case of multi-family homes or multiple heirs, the testator should establish clear provisions: Who gets which property, who assumes the mortgage, and who must compensate for statutory share claims?

A notary and a specialist attorney for inheritance law in Nuremberg can help find a tax-optimized and low-conflict solution. As real estate experts, we stand by your side to incorporate property-specific aspects (current market values, rental situation, financing status) into your estate planning.

Frequently Asked Questions

Is the testator required to draw up a will?

No. Without a will, statutory succession applies pursuant to Sections 1924 et seq. of the German Civil Code (BGB). In simple circumstances, this may be sufficient; however, in cases involving real estate ownership, blended families, or business succession, we always recommend a testamentary arrangement.

Can the testator gift real estate during their lifetime to save on estate tax?

Yes, gifts of real estate during one’s lifetime can reduce estate tax. However, the same exemption limits apply as under estate tax law-and these are reset every 10 years. Gifts made within 10 years prior to death are counted toward the statutory share. Tax advice is advisable in any case.

What happens to the decedent’s entry in the land registry after their death?

The land registry initially still lists the decedent as the owner. After the inheritance takes effect, an application must be filed to correct the land registry entry-either by means of a certificate of inheritance or by submitting a notarized copy of the will along with the opening protocol. Until the title is transferred, the heirs are the owners but are not yet registered in the land registry.

How do high property values affect inheritance tax?

Due to rising property values in the Nuremberg metropolitan area, personal inheritance tax exemptions are being exhausted more quickly. Children have an exemption of 400,000 euros-a typical single-family home in Nuremberg often exceeds this value. This is why estate planning is particularly important for property owners: by making timely gifts during their lifetime, exemption amounts can be utilized multiple times.

What is a partition order, and what is it used for?

With a partition order in the will, the testator can bindingly stipulate which heir is to receive which estate asset-in particular, which property. The partition order does not change the inheritance shares, but it does bindingly regulate the division among the heirs. Without such an order, the estate becomes a community of heirs, and each heir can demand the division-which, in the case of real estate, often leads to forced sales or protracted disputes. Especially for families with several children and a real estate portfolio in Nuremberg or Franconia, we recommend specifying not only inheritance shares but also concrete partition orders for each property in the will. This provides the heirs with planning certainty and significantly reduces the potential for conflict.

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