Joint Will

The joint will is a testamentary disposition drawn up jointly by two people-in Germany, exclusively spouses or registered partners-in a single document (Section 2265 of the German Civil Code (BGB)). It allows the parties to coordinate their mutual financial security and the administration of their estate, particularly with regard to real estate. The best-known form is the so-called “Berlin will,” in which the partners name each other as sole heirs.

Forms and Legal Requirements

A joint will may be handwritten if one spouse writes it entirely by hand, dates it, and both sign it (Section 2267 of the German Civil Code). Alternatively, notarization is possible-and often advisable in cases of complex real estate estates. Important: Individual dispositions in the joint will may be reciprocal, i.e., one partner’s disposition is valid only because the other’s is also valid. Reciprocal dispositions generally cannot be unilaterally amended after the death of the first spouse to die.

Non-reciprocal dispositions-those that would apply even without the corresponding counter-disposition-can still be changed after the death of the first spouse. The precise distinction between reciprocal and non-reciprocal dispositions is one of the most important legal issues in joint wills and should be clarified by a notary in case of doubt.

Berlin Will and Real Estate

In a Berlin will, the surviving spouse initially inherits everything, while the children are the final heirs. This sounds straightforward but presents tax pitfalls when it comes to real estate: Children are entitled to a statutory share in cash, which may become due immediately upon the death of the first spouse-even if only illiquid real estate is available. This can be mitigated through a penalty clause for the statutory share without abandoning the fundamental principle of mutual protection.

The penalty clause for the statutory share states: Anyone who claims the statutory share upon the first spouse’s death shall also receive only the statutory share upon the last spouse’s death-and is thus largely excluded from the inheritance. This clause acts as a deterrent and prevents children from insisting on immediate cash payment of their statutory share upon the first death.

Tax Aspects of the Berlin Will

The Berlin Will is not always the optimal structure from an inheritance tax perspective. Since children are disinherited upon the death of the first spouse, they cannot utilize their tax exemption (400,000 euros per child and parent) at the time of the first inheritance. The entire estate then passes to the surviving spouse-and upon the second inheritance, each child can use their exemption only once, even though it could have been used twice in the case of staggered transfers.

Anyone wishing to minimize inheritance tax should therefore supplement the Berlin will with a bequest: Upon the death of the first spouse, the children are granted a bequest equal to their tax allowance, which is funded from the real estate or the rest of the estate. This ensures that the allowances are fully utilized in both instances of inheritance without jeopardizing the surviving spouse’s financial security.

Binding Effect and Options for Amendment

As long as both partners are alive, the joint will can generally be revoked by a new joint will or by a notarized revocation. After the death of one partner, changes to reciprocal dispositions are only possible by renouncing the inheritance. Non-reciprocal dispositions, however, can still be changed even after the first spouse’s death-the exact distinction requires legal review.

Practical Tip for Property Owners in Nuremberg and Franconia

In the Nuremberg metropolitan region, real estate often constitutes the largest asset in an estate. We recommend that married couples who own a house or a condominium have their joint will drawn up by a notary and explicitly stipulate how the property is to be handled-whether it is to be retained, sold, or transferred to children.

Especially in the case of multi-generational homes typical of Franconia and existing properties that have been in family ownership for decades, clear provisions are essential to avoid disputes among heirs. We regularly advise our clients prior to a real estate transaction on whether the existing will adequately addresses the property situation-and, if necessary, recommend that it be revised by a notary. A current real estate appraisal by us forms the basis for the testamentary arrangement.

Frequently Asked Questions

Can unmarried couples draw up a joint will?

No. The joint will is reserved by law for spouses and registered partners. Unmarried couples can, however, enter into a joint inheritance agreement with a notary, which has similar effects.

What happens to the joint will after a divorce?

Once the divorce becomes final, mutual dispositions in the joint will become invalid if they were clearly dependent on the marriage (Section 2268 of the German Civil Code). It is strongly recommended to draw up a new will after the divorce.

Does the joint will have to be filed with the probate court?

There is no legal obligation to file it, but it is advisable. The local court-in Nuremberg, the probate division of the Nuremberg Local Court-safely stores wills and registers them in the Central Register of Wills, ensuring they can be reliably located in the event of inheritance.

Can I create a joint will without a notary?

Yes, a handwritten joint will is permissible if one spouse writes it entirely by hand, dates it, and both sign it. For complex estates involving real estate, however, we recommend notarization: The notary clarifies which dispositions are interdependent and drafts the will so that its binding effect corresponds to the spouses’ wishes.

Real Estate in a Joint Will: Provisions for Sale

A frequently overlooked loophole in handwritten Berlin wills concerns the sale of the property by the surviving spouse. Anyone who inherits the entire estate, including the real estate, as sole heir may generally sell it-unless the will contains explicit restrictions. If spouses wish for the property to remain in the family or to be sold only with the children’s consent, this must be explicitly stipulated in the will. Otherwise, the surviving spouse’s freedom to dispose of the property is generally unrestricted.

In practice, we recommend that property owners in the Nuremberg metropolitan area also consider a current property valuation when drafting their wills. If the property’s value differs significantly from the rest of the estate, this can have a major impact on estate tax planning and the distribution of bequests. A well-founded market price assessment by my-home.de ensures that the provisions in the will align with the actual financial situation-rather than being based on outdated valuations.

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