Partition arrangement in the will
Pursuant to Section 1922 (1) of the German Civil Code (BGB), the estate passes as a whole to one or more persons upon the death of the deceased. The distribution and allocation of the estate assets usually take place within the framework of the division of the estate. However, the testator can also make a division order within the meaning of Section 2048 Sentence 1 of the German Civil Code.
What is a division order?
In his will, the testator can make a division order pursuant to Section 2048 Sentence 1 of the German Civil Code in order to prevent subsequent disputes between the co-heirs. In particular, the testator can use a partition order to allocate a specific object of the estate to a co-heir.
The execution of the partition order requires the transfer of the object of the estate by the community of heirs to the individual heir determined in accordance with the will. The share values and inheritance shares remain unchanged by the division order. However, the co-heir must have the value of the object assigned to him credited to his inheritance share.
What is the difference between the division order and the advance bequest?
It is important to be able to differentiate whether the testator wishes to issue a partition order or an advance bequest, as these two orders are hardly distinguishable in terms of their wording.
In contrast to a division order, in the case of an advance bequest the bequeathed item is not offset against the co-heir's share of the inheritance. Instead, the heir receives the item in advance. This results in the co-heir being in a better position than the other co-heirs with the same inheritance quota.
Testator E leaves 90,000 euros in cash assets and jewelry worth 30,000 euros. He draws up a will with the following content: "My daughter T and my son each inherit ½. Due to S's devoted care in recent years, he is to receive my jewelry."
If the testator had made a division arrangement in this case, S would inherit the jewelry as well as cash in the amount of 15,000 euros when the estate is divided. In this case, T would receive 45,000 euros.
If this arrangement constituted an advance bequest, S would have a claim to transfer of ownership of the jewelry against the community of heirs. In addition, S is entitled to half of the cash assets.
The testator's will to be determined in the individual case is decisive for the delimitation. In the example case, an advance bequest would be assumed due to the justification by the years of care.
Can I also prevent or even prohibit estate items from being divided up?
In principle, there is always the possibility that the community of heirs will be dissolved. However, the testator has the option of controlling the fate of the community of heirs by means of a prohibition on the division of the estate. In this way, the testator can prevent the estate or certain objects of the estate from being divided in the course of the dissolution of the community of heirs.
Pursuant to Section 2044 of the German Civil Code, the testator has the option to exclude or impede the division in whole or in part by means of a testamentary disposition.
The prohibition of inheritance division can be stipulated as an independent division order or in conjunction with one. Among other things, it can also be limited to only certain items.
It is generally recognized that the death of a co-heir cancels the effectiveness of a prohibition of partition. In addition, a partition prohibition ends in accordance with the statutory provisions after 30 years at the latest.