Acquisition of Inheritance

The acquisition of an inheritance signifies the legally effective transfer of the estate to the heirs. Until the judicial transfer of inheritance, heirs may not dispose of the deceased’s assets independently. The probate court first examines the entitlement to inherit, receives the declarations of acceptance of inheritance, and decides whether an inventory must be drawn up. Only when all prerequisites are met is the estate transferred to the heirs by means of the decree of judicial transfer of inheritance. This procedure serves not only to ensure clear legal succession but also to protect against liability risks, especially in the case of over-indebted estates.

Legal Basis

The acquisition of an inheritance is strictly regulated. No one may simply take over or dispose of the deceased’s assets. The competent authority is always the probate court at the deceased’s last place of residence. The proceedings are initiated ex officio there as soon as a death becomes known.

The court ensures that the heirs prove their entitlement to inherit. Only after this examination and a formal declaration can they accept the inheritance. This clear structure protects not only the heirs themselves but also creditors who may have claims against the estate.

The Judicial Transfer of Inheritance

The judicial transfer of inheritance is the official handover of the estate to the heirs by a court order. This order concludes the probate proceedings. Only from this point onwards does ownership of all estate assets pass to the heirs.

The judicial transfer of inheritance thus constitutes the decisive step from a mere expectant right to full ownership. It also forms the basis for the registration of the heirs in the land register if real estate belongs to the estate.

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Declaration of Acceptance of Inheritance

The declaration of acceptance of inheritance is the heir’s central declaration that they accept the inheritance. It must be submitted either unconditionally or conditionally.

• Unconditional Declaration of Acceptance of Inheritance: The heir accepts the estate without reservation and is thus generally liable for estate debts.
• Conditional Declaration of Acceptance of Inheritance: Acceptance occurs “with reservation of inventory.” This means that the heir’s liability is limited to the value of the existing estate. For this, a complete inventory of assets and debts must be drawn up.

The choice between an unconditional and a conditional declaration of acceptance of inheritance is of great importance. Anyone who assumes unconditional liability also risks being held responsible for hidden debts. However, anyone who chooses the reservation of inventory protects themselves but must expect additional costs and administrative effort.

Inventory and Liability Issues

The inventory provides a complete overview of the assets and liabilities of the estate. It serves as a basis for limiting liability in the case of a conditional declaration of acceptance of inheritance and creates clarity in complex financial situations.

An inventory must be drawn up in particular if a conditional declaration of acceptance of inheritance has been submitted, if minor compulsory heirs are involved, if segregation is requested, if there is a subsequent inheritance or a private foundation established by will, or if beneficiaries or the estate curator request it. Likewise, if the applicable inheritance statute limits liability to the value of the estate. In cases of conditional acceptance, the estate creditors must be informed ex officio about the creation of the inventory.

The form of the declaration of acceptance of inheritance is strict. It is submitted orally before the court commissioner or in writing, must be signed by the heir or their designated representative, and must explicitly state whether the inheritance is accepted unconditionally or conditionally. Conditions in the declaration are inadmissible.

If co-heirs choose partly unconditional and partly conditional acceptance, an inventory must be drawn up. The conditional acceptance then takes effect for all co-heirs. This means that liability generally does not exceed the value of the net estate.

Special feature in the case of business continuation: If heirs continue a business operated by the deceased, they are generally liable without limitation according to the principles of corporate law, regardless of whether they accepted the inheritance unconditionally or conditionally. They can only escape this liability if they cease the continuation within three months of the judicial transfer of inheritance or the handover of management and administration.

Renunciation of Inheritance

Renunciation is the unilateral declaration to the probate court not to accept the inheritance. According to case law, it is generally irrevocable upon knowledge by the court or court commissioner. In narrow exceptional cases, an appeal due to defects of will remains possible.

Compulsory heirs can renounce the inheritance and at the same time reserve their compulsory portion. This provides an orderly solution if full acceptance would be associated with unacceptable obligations.

If a designated heir dies before accepting or renouncing, their right to accept or renounce passes to their own heirs. However, this transmission only applies if the testator has not excluded it or appointed subsequent heirs.

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Creditor Rights and Securing the Estate

Before the judicial transfer of inheritance, the heir who sufficiently proves their right to inherit may be entrusted with the use, administration, and representation of the estate. However, court approval is required for dispositions outside of ordinary administration. Thus, the estate is secured until the transfer of ownership becomes legally binding.

In the case of over-indebted or questionable estates, security instruments are used. The court can publicly call upon creditors to register their claims. Above a certain asset value, the estate creditors must be compulsorily notified. The ranking in the case of a transfer in lieu of payment is determined analogously to the Insolvency Act.

If the estate is insolvent, it must first be examined whether insolvency proceedings should be opened. During insolvency proceedings, the probate proceedings are suspended but can be continued with regard to assets not covered by the insolvency. The decision between insolvency and transfer in lieu of payment is made based on economic efficiency, taking into account creditor satisfaction.

Finally, the transfer of ownership is legally completed through the judicial transfer of inheritance. It requires the determination of the heirs and the fulfillment of the last will and forms the basis for registration in the land register. Procedural errors can still be asserted until the decree of judicial transfer of inheritance becomes legally binding.

Decree of Judicial Transfer of Inheritance and Legal Consequences

The judicial transfer of inheritance represents the conclusion of the probate proceedings. Once the heirs have been determined and the fulfillment of the last will has been verified, the court issues a decree of judicial transfer of inheritance. With this decree, ownership of the entire estate passes to the heirs.

The decree of judicial transfer of inheritance has several central effects:

• Acquisition of Ownership: Upon the legal validity of the decree, the heir becomes the owner of the estate assets. This ends the mere expectant right to the inheritance.
• Land Register Entries: The decree forms the basis for the registration of the heirs as new owners of real estate in the land register.
• Legal Validity: Procedural errors can only be challenged until the decree of judicial transfer of inheritance becomes legally binding. Thereafter, the acquisition of ownership is secured.
• Liability Issues: Several co-heirs are generally jointly and severally liable for estate debts, but only up to the value of their inheritance share. Each heir is thus externally obligated but can demand compensation from their co-heirs internally.

Thus, the judicial transfer of inheritance creates legal certainty. It marks the moment from which heirs are not only beneficiaries but also assume all rights and obligations of the deceased.

Special Constellations

In probate proceedings, special situations may arise that require different regulations:

• Transmission (Transfer of the Right of Inheritance): If a designated heir dies before accepting or renouncing the inheritance, their right passes to their own heirs. They decide whether to accept or renounce the inheritance. The prerequisite is that the original testator has not prevented this by appointing subsequent heirs or explicit exclusion.
• Subsequent Discovery of Assets: If further estate assets are discovered after a judicial transfer of inheritance has already taken place, an additional court proceeding is required. A new declaration of acceptance of inheritance does not have to be submitted. The court merely supplements the proceedings with the new estate values.
• Subsequently Discovered Will: If a last will and testament emerges after the judicial transfer of inheritance, it must be handed over to the court commissioner. A new probate proceeding does not take place. The beneficiaries from this will can only assert their rights through civil law proceedings against the heirs to whom the inheritance has been judicially transferred (inheritance action).
• Over-indebted Estate: In the event of a negative asset balance, the estate can be transferred to the creditors “due to lack of assets” or insolvency proceedings can be opened. In both cases, no final judicial transfer of inheritance to the heirs takes place.
• Differing Declarations of Acceptance of Inheritance: If some co-heirs declare the inheritance unconditionally and others only conditionally, the conditional declaration applies to all. This makes an inventory mandatory to protect creditors and compulsory heirs.

These special cases show that the acquisition of inheritance is more than a formal act. It requires attention and legal clarity, as later surprises can have significant economic consequences.

Your Benefits with Legal Assistance

The acquisition of an inheritance is complex and entails numerous risks. Heirs often have to decide at short notice whether to accept the inheritance unconditionally or only conditionally. Unknown debts, unclear assets, or disputed compulsory portion claims can have significant economic consequences. The administration of joint estates also frequently leads to conflicts that further strain personal relationships.

Legal assistance from a specialized law firm like ours provides security. It ensures that all decisions are made on a sound basis and that future disadvantages are avoided.

Our law firm

• examines whether the respective inheritance law topic is applicable in your case,
• accompanies you through the entire procedure or settlement,
• ensures legally sound structuring and implementation of all necessary steps,
• assists with the calculation, enforcement or defense of claims,
• protects your rights and interests against all parties involved.

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