What is a legacy?
By means of a bequest, the testator can give a person a certain object without directly appointing him or her as heir. The beneficiary is the so-called legatee. The arrangement of a legacy is only made by way of a testamentary disposition upon death.
What can be the subject of a legacy?
Anything can be the subject of a bequest.
Examples of bequests are:
A certain amount of money
Right of usufruct
What types of bequests are there?
In the case of an individual bequest, only one specific item from the estate's assets is given to the legatee.
Pursuant to Section 2190 of the German Civil Code, the testator may grant the object of the bequest to another person in the event that the initially intended beneficiary does not acquire the bequest.
If, pursuant to Section 2191(1), the testator has bequeathed the bequeathed object to a third party from a specific time or event occurring after the accrual of the bequest, the first legatee shall be deemed to be adversely affected.
If the certain time or event has occurred, the object of the bequest shall accrue to the legatee.
In the case of a bequest of acquisition within the meaning of Section 2170 of the Civil Code, the testator grants the legatee an object that does not form part of the inheritance.
In the case of a universal bequest, the testator bequeaths to the legatee the entire estate remaining after settlement of the estate's liabilities.
In the elective bequest pursuant to Section 2154 of the Civil Code, the beneficiary is to receive only one or the other of several items.
My neighbor B may choose any item from my house inventory.
If the testator has determined the bequeathed object only according to its genus pursuant to Section 2155 (1) of the Civil Code, an object corresponding to the circumstances of the beneficiary is to be provided.
To my neighbor B I bequeath one of my records from my large record collection.
Pursuant to Section 2156 of the German Civil Code, the testator may, in the case of a bequest the purpose of which he has determined, leave the determination of the payment to the reasonable discretion of the beneficiary or a third party. There must be sufficient indications for the selection of the object of the bequest.
An example of this is the enabling of an education or a course of study.
An advance bequest within the meaning of section 2150 of the Civil Code is a bequest made to an heir. The legacy granted to the heir is to accrue in addition to his or her inheritance share.
What are the arguments in favor of a bequest and against an inheritance?
There are many different reasons for arranging a legacy. One reason may be that the testator wishes to give a certain object to a certain person. Furthermore, the formation of an undesirable community of heirs can be prevented by the arrangement of a legacy.
In addition, the bequest pursuant to Section 2151 (1) of the German Civil Code allows the testator to determine that several persons are to receive a bequest in such a way that the testator or a third party determines which of the several persons is to receive the bequest.
For example, the latter can be used in relation to the regulation of a business succession, so that the testator or a third party should select the most suitable person for the business succession.
How to distinguish a legacy from an inheritance?
It is often difficult to distinguish whether someone has been appointed as an heir or merely a bequest has been ordered. In particular, if larger assets are bequeathed, it is difficult to determine.
In case of doubt, it must be determined by interpretation whether a strong position of the testator in the estate is desired (establishment of inheritance), or whether merely a claim to a certain object is to be granted.
The law has created important interpretative aids to make a distinction. Pursuant to Section 2087 (1) of the German Civil Code, the disposition is to be regarded as a grant of inheritance if the testator has granted his property or a fraction of his property to the donee, even if the donee is not designated as the heir. Pursuant to Section 2087 (2) of the German Civil Code, it is not to be assumed in case of doubt that the donee is to be the heir if only individual items are bequeathed to him.
What must a legatee do?
If someone has been appointed as a legatee, it must be ensured that this only gives rise to a claim to the bequest granted against the community of heirs.
The debtors are the co-heirs, who are jointly and severally liable, unless otherwise stipulated by the testator. In this context, the legatee may assert his claim irrespective of whether the community of heirs is triggered.
If there are difficulties in enforcing his bequest claim against the heir, it can be enforced by way of a lawsuit if necessary. However, this can only be filed after the expiry of the six-week deadline for rulings or after acceptance of the inheritance.
In addition, as a legatee you have the option of disclaiming the inheritance by means of an informal declaration to the aggrieved party.