Does the inheritance have to be accepted?
In Germany, the principle of voluntary inheritance applies. The inheritance is transferred to the heirs without the need for acceptance, Section 1942 BGB. However, caution is advised: if an heir declares acceptance of the inheritance, it can no longer be waived. The acceptance does not have to be expressly accepted; conclusive behaviour is sufficient. If, for example, the heir sells items from the estate, this can be interpreted as acceptance and a waiver can no longer be considered.
What is the deadline for renouncing the inheritance?
The heir is the legal successor of the deceased. This means that the heir not only receives the assets, but may also assume the debts and obligations of the deceased. This can, for example, be a reason to waive the inheritance. According to Section 1944 BGB, the waiver can only be declared within 6 weeks. The period begins at the time at which the heir becomes aware of the claim and the reason for the appeal. Knowledge in this sense presupposes reliable knowledge of the relevant factual and legal circumstances. The heir must therefore know that the testator has died and that he himself has become an heir.
If the deadline for the waiver is missed, the only remaining option is to contest the acceptance of the inheritance or the failure to meet the deadline.
Who will inherit if I disclaim?
For the then open regulation of succession, the law stipulates in Section 1953 (2) BGB that, after the heirs declaring the waiver, those heirs are appointed as heirs who would also be heirs if the waiving heirs had no longer been alive at the time of the inheritance. The succession therefore continues. In the case of intestate succession, the further succession after the waiver is based on Sections 1925 para. 3 sentence 1, 1924 para. 3 BGB. This means that the children of the disclaiming party inherit (succession by lineage). For this reason, it is necessary for the descendants of the disclaimant to also declare the disclaimer.
In the event of a waiver by the heir designated in the will, the descendants of the waiving party also inherit in case of doubt in accordance with the interpretation rule of Section 2069 BGB. However, this does not have to be the case if a different intention of the testator can be established. Nevertheless, even in this case, the descendants of the disclaimant should always disclaim.
What do I have to do to renounce the inheritance?
The waiver of an inheritance is made by declaration to the probate court that has jurisdiction for the probate matter in accordance with Section 343 FamFG. As a rule, this is the court in whose district the deceased last resided.
Where do I have to renounce the inheritance?
Section 344 para. 7 FamFG now expressly stipulates that a declaration of renunciation to the probate court that does not have local jurisdiction is valid and effective within the time limit. The provision covers the acceptance of the waiver of inheritance (Section 1945 para. 1 BGB), the contestation of a waiver of inheritance (Section 1955 sentence 1 alt. 2 BGB) and - despite not being mentioned - also the contestation pursuant to Section 2308 para. 1 BGB and the contestation of an acceptance of inheritance (Sections 1955 sentence 1 alt. 1, 1956 BGB).
Can I still renounce the inheritance if the deadline has expired or I have already accepted the inheritance?
However, in accordance with Section 1956 of the German Civil Code, failure to meet the deadline for waiver can be contested in the same way as the acceptance of the inheritance. In this respect, the general grounds for contestation apply (BGH, judgement of 29 June 2016, case no. IV ZR 387/15 with further references)
A ground for avoidance may arise from an error regarding the over-indebtedness of the estate, which constitutes an essential characteristic within the meaning of Section 119 (2) BGB (BGH, judgement of 8 February 1989 - IVa ZR 98/87).
The avoidance must be declared within 6 weeks (Section 1954 BGB). In the case of avoidance on the grounds of threat, the period begins at the time at which the predicament ceases; in other cases, it begins at the time at which the person entitled to avoid becomes aware of the grounds for avoidance. The time limit is six months if the testator's last place of residence was only abroad or if the heir is abroad when the time limit begins.
Pursuant to Section 1957 of the German Civil Code (BGB), contesting the acceptance or contesting the failure to meet the deadline for waiving the inheritance is deemed to be a waiver of the inheritance.
For the then open regulation of succession, the law stipulates in Section 1953 (2) BGB that, after the heirs declaring the waiver, those heirs are appointed as heirs who would also be heirs if the waiving heirs had no longer been alive at the time of the inheritance. The succession therefore continues. In the case of intestate succession, the further succession after the waiver is based on Sections 1925 para. 3 sentence 1, 1924 para. 3 BGB. This means that the children of the disclaiming party inherit (succession by lineage). For this reason, it is necessary for the children of the disclaiming party to also declare their disclaimer if they do not wish to be included in the succession.
In the event of a waiver by the heir designated in the will, the descendants of the waiving party also inherit in case of doubt in accordance with the interpretation rule of Section 2069 BGB. However, this does not have to be the case if a different intention of the testator can be established. Nevertheless, even in this case, the descendants of the disclaimant should always disclaim.
In accordance with Section 1956 of the German Civil Code (BGB), the contestation is made by declaration to the probate court that has jurisdiction for the probate matter in accordance with Section 343 of the German Family Proceedings Act (FamFG). As a rule, this is the court in whose district the deceased was last domiciled. Pursuant to Section 1956 sentence 2 BGB, the provisions of Section 1945 BGB apply to the declaration, i.e. the waiver must be submitted for the record of the probate court or in a publicly notarised form.
Section 344 (7) FamFG now expressly stipulates that a declaration of renunciation to the probate court that does not have local jurisdiction is valid and effective within the time limit. The provision covers (see Heinemann, FamFG für Notare, para. 285) the acceptance of the waiver of inheritance (§ 1945 para. 1 BGB), the contestation of a waiver of inheritance (§ 1955 sentence 1 alt. 2 BGB) and - despite not being mentioned - also the contestation pursuant to § 2308 para. 1 BGB and the contestation of an acceptance of inheritance (§§ 1955 sentence 1 alt. 1, 1956 BGB).