In principle, problems or special features arise in the legal evaluation of a situation when minors are involved. This also applies to inheritance law. In principle, minors can legally inherit in the same way as adults, but due to the special protection of minors, there are some legal peculiarities that must be taken into account in inheritance law processes.
From when can a child inherit under the statutory law of succession?
According to Section 1923(2), the capacity to inherit already begins if the child was already conceived at the time of the inheritance, and thus already before birth.
What restrictions does the minor heir experience?
Due to his or her lack of capacity or only limited capacity, the minor heir experiences restrictions in the management of his or her assets. In other words:
As a rule, the minor cannot dispose of the inherited assets until his or her 18th birthday.
Thus, the child is protected in legal transactions by §§ 104 ff. BGB and is restricted in his or her actions. At the same time, under section 1626(1) sentence 2 of the Civil Code, it falls within the scope of parental care to look after the minor's assets on his or her behalf.
Can parents freely dispose of the assets inherited from the child?
In principle, parents are able to dispose of the child's assets. However, there can be no question of the possibility of free disposal, because the law provides for numerous disposals.
The principle of care of property resulting from Section 1626 (1) sentence 2 of the German Civil Code (BGB) already restricts parents in the disposal of the child's assets in the sense that the child's welfare must always be paramount. Parents are not permitted to spend the child's assets for their own purposes and interests.
Within the framework of Section 1649(2) of the Civil Code, parents have the option, within very narrow limits, to use the income from the assets that is not required for the proper administration of the assets and for the maintenance of the child for their own maintenance and for the maintenance of the child's minor siblings, insofar as this is in accordance with fairness, taking into account the asset and income situation of the parties involved.
What legal restrictions does the law impose with regard to property custody?
First of all, it should be noted that the welfare of the child must always be the primary consideration in parental care of assets.
If the child has inherited money, the parents must invest the money for the child in accordance with the principles of economic asset management pursuant to Section 1642. This means that the security of the chosen form of investment must take precedence over excessive expectations of return. If the parents do not have the appropriate knowledge, they must seek professional help.
However, § 1642 of the German Civil Code (BGB) requires the parents to keep ready the monetary contributions from the inheritance that the parents will need for expenses within a foreseeable period of time.
Furthermore, the parents are subject to a gift prohibition according to § 1641 BGB. Accordingly, parents may not make gifts on behalf of the child. Exceptions to this are gifts that are in accordance with a moral duty or a consideration that must be given to decency. These include, for example, gifts to safeguard family peace or free gifts to siblings to enable them to study or receive other training.
In addition, inherited assets are protected by the fact that legal transactions through which minors do not merely obtain a legal advantage require approval (section 107 of the Civil Code). Depending on the type of legal transaction, approval by the family court may be necessary.
When do family courts intervene?
Dispositions of real estate in particular require the approval of the family court.
If the child acquires assets on account of death, the parents must, in accordance with section 1640 (1) sentence 1 of the German Civil Code (BGB), record the assets subject to their administration, provide the inventory with an assurance that it is correct and complete, and submit it to the family court. This list of assets serves, on the one hand, to protect the integrity of the child's assets and, on the other hand, to facilitate the control of asset management.
If the parents fail to comply with the obligation, the family court may compel them to do so by means of coercive measures under section 35 of the Family Proceedings Act. In addition, pursuant to Section 1640 (3) of the Civil Code, the court may order the competent authority, a civil servant or a notary to record the list. In addition, there may also be a deprivation of property custody pursuant to section 1666 of the Civil Code.