Legacy

Legacy

A bequest is the allocation of individual items or rights through a testamentary disposition, such as a sum of money, an apartment, or a specific object. In contrast to an inheritance, not the entire estate is bequeathed, but only a clearly designated benefit.

Whoever receives a bequest does not automatically become an heir, but acquires a claim against the heirs. Whether a will contains an appointment of heir or a bequest depends on how the wording is to be understood. Often, the last will must be precisely interpreted.

A bequest (also known as a legacy) is the allocation of individual assets through a testamentary disposition. In this case, no heir is appointed, but rather a specific item, a sum of money, or a right is granted.

Formation of a Bequest

A bequest arises in various ways:

• through a will or a holographic last will
• through a contract of inheritance
• through a separate contractual agreement regarding an allocation
• in certain cases, also automatically by legal provision, for example, for care services or for spouses

It is always crucial that the will of the deceased person is clearly and unequivocally expressed.

Assets that Can be Bequeathed

In principle, anything that has economic or tangible value can be bequeathed. These include, in particular:

• Houses, apartments, or real estate
• Jewelry, vehicles, or works of art
• Rights of residence or other rights of use
• certain claims or personal services

The testator generally obliges the legatee to also assume the associated burdens, such as existing debts or third-party rights of use, unless otherwise stipulated in the will.

Obligation to Fulfill the Bequest

The claim to a bequest is initially directed against the estate. After the completion of the probate proceedings, the heirs are obliged to fulfill it. If there are multiple heirs, they are jointly liable. Internally, they can divide among themselves who assumes which part of the bequest.

The testator can also determine which person is to fulfill the bequest. This can be a specific heir or a legatee who is himself burdened with the transfer of an asset.

In certain cases, a legatee may also be obliged to make a further allocation to a third person. This is then referred to as a sub-bequest. This obligation exists even if the value of the item to be transferred exceeds the legatee’s own benefit. The affected legatee can only avoid this by disclaiming their own bequest.

Legal Status of the Legatee

A bequest establishes an enforceable claim against the heirs. If performance is refused, the legatee can enforce their claims in court. It is advisable to assert the claim as early as possible.

The right arises upon the death of the deceased person. If the legatee dies before receiving the bequest, the claim passes to their heirs.

Sebastian Riedlmair
Harlander & Partner Attorneys „Ein Vermächtnis ist kein Geschenk. Es handelt sich um einen rechtlich durchsetzbaren Anspruch. Wer leer ausgeht, weil die Erben nicht leisten, kann sich auf das Gesetz verlassen“

Time of Claiming the Bequest

In many cases, the legatee can demand delivery immediately after the death. However, for certain bequests, particularly monetary allocations or items that are not part of the estate, the claim only becomes enforceable after one year from the date of death.

Until delivery, the legatee is entitled to the proceeds or uses of the bequeathed item. At the same time, they also bear the associated ongoing costs.

Statute of Limitations

The claim to a bequest generally lapses three years from the time the legatee became aware of their right and the circumstances. Regardless, the claim expires in any case 30 years after the death. Anyone wishing to assert a bequest should therefore act in a timely manner.

Forms of Bequest

Depending on the content, different types of bequests are distinguished:

Generic Bequest

An item that exists in multiple copies is bequeathed, for example, a watch from a collection. Who specifically may choose is determined by the will. If no provision is made, the right of choice may lie with the heir, a third party, or the legatee themselves.

If no suitable item is available or the parties cannot agree, the court decides what the legatee is entitled to. In doing so, it considers the needs of the beneficiary.

Specific Bequest

The subject is a very specific item, for example, a precisely designated car or an individual piece of jewelry. The allocation clearly refers to a single object.

Multiple Specific Bequest

If the same specific item is bequeathed multiple times in the will, this generally gives rise to only a single claim. Multiple disbursements of the same allocation are not provided for.

Acquisition Bequest

Sometimes the testator bequeaths an item that is not in their possession at the time of death. In such cases, a valid bequest may nevertheless exist if it is clearly recognizable that the heir is to procure the item and hand it over to the legatee. Legally, this is referred to as an acquisition bequest.

Claim Bequest

A claim against a third person is bequeathed, for example, an outstanding loan claim. The heirs are obliged to transfer the claim to the legatee.

Bequest of Release from Debt

The testator releases the legatee from a debt that the latter owed to them. The claim for repayment is waived.

Debt Bequest

The heir must fulfill the existing debt, even if it is subject to conditions or not yet due. This provides the legatee with additional legal security.

Heir with Additional Bequest

A person appointed as an heir can also receive a bequest. In these cases, a distinction is made between a preliminary bequest (Vorausvermächtnis) and an inclusive bequest (Hineinvermächtnis). A preliminary bequest is an allocation in addition to the share of the inheritance. With an inclusive bequest, the allocation is credited against the share of the inheritance. If an explicit provision is missing in the will, it is assumed in case of doubt that the bequest was intended in addition to the share of the inheritance.

Abatement of the Bequest

The heirs abate a bequest if certain legal requirements are met. This occurs particularly when the available assets are insufficient to pay out both the bequests and the compulsory portions. In this case, the heirs ensure that the statutory minimum claims of other persons are preserved through a proportional abatement.

Your Benefits with Legal Assistance

A bequest can raise tax, civil law, and practical questions. With legal advice, you secure:

• Examination of deductibility against compulsory portions
• Legally sound drafting of testamentary dispositions
• Avoidance of interpretation conflicts and disputes among relatives
• Enforcement of your claims against heirs or co-heirs

Sebastian Riedlmair
Harlander & Partner Attorneys „Gerade bei mehreren Erben sorgt ein klar formuliertes Vermächtnis für Rechtssicherheit. Wer Streit vermeiden will, sollte sich frühzeitig rechtlich beraten lassen.“

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