If the heir does not have legal capacity or is a minor, they cannot declare the renunciation of the inheritance themselves. We explain the disclaimer for underage heirs in another article. If a person lacks legal capacity, the waiver must be declared by a guardian. A waiver by other persons is not possible, even if these persons have been granted a general power of attorney.
If no guardian has been appointed for the legally incapacitated heir, a guardian must first be appointed by the guardianship court. When appointing a guardian, the court also determines their area of responsibility. For a guardian's declaration of renunciation to be effective, it is necessary that this activity is part of the guardian's duties within the meaning of Section 1896 (2) BGB. According to the prevailing opinion, the renunciation of an inheritance should also be part of a carer's area of responsibility if the area of responsibility „property care“ has been assigned to them.
The deadline for disclaiming an inheritance must also be observed for an heir who is legally incapable. The deadline for waiver begins when the heir becomes aware of the inheritance and the reason for the appeal, in the case of a will not before it is announced by the probate court (Section 1944 (2) BGB). However, in the case of an heir who is legally incapable, it is not the knowledge of the heir himself that is decisive for the running of the time limit, but rather the knowledge of the guardian. However, it is also possible for a guardian to be appointed for a person with legal capacity. The appointment of a guardian therefore does not always require legal incapacity. In such cases, the deadline for making a bequest is set in motion by the knowledge of the heir who is being looked after but has legal capacity.
However, the declaration of renunciation by the carer on behalf of an heir who is legally incapable is not sufficient on its own to effectively renounce the inheritance. Pursuant to Sections 1822 No. 2, 1908i, 1915 BGB, the declaration of renunciation by the carer also requires the approval of the guardianship court.
It is not uncommon for the authorisation of the waiver by the guardianship court to take several months. This raises the question of how the authorisation procedure by the guardianship court can be reconciled with the short deadline for waiver. The Higher Regional Court of Brandenburg has ruled that the deadline for the waiver is suspended as long as the authorisation by the guardianship court has not been granted, provided that the authorisation was applied for in good time, i.e. before the deadline for the waiver expires. The acceleration of the authorisation procedure is not in the hands of the applicant. In accordance with Section 209 BGB, the time that elapses between the initiation of the authorisation procedure and the receipt of the legally binding authorisation from the care court is not taken into account when calculating the six-week deadline for the rescheduling of the estate in accordance with Section 1944 (1) BGB. However, the period continues to run from the beginning of the next day after the end of the suspension (OLG Brandenburg, decision of 22 April 2014 - 3 W 13/14). It is not clear whether, in addition to the timely application for authorisation, it is also necessary for the waiver itself to be declared before the expiry of the waiver period in order to suspend the waiver period. The Saarland Higher Regional Court leaves this open in its decision of 17 February 2011 - 5 W 245/10. Due to this lack of clarity, however, the guardian is strongly advised not only to submit the application for authorisation of the waiver in a timely manner, but also to submit the waiver declaration to the probate court before the expiry of the waiver period.
The authorisation of the waiver by the guardianship court can therefore be submitted to the probate court at a later date. The authorisation does not have to be applied for so early that it can still be expected to be granted within the non-suspended waiver period. However, the guardian must ensure that the deadline for waiver is no longer suspended once the authorisation has been granted by the probate court, i.e. that it continues to run. This means that despite a timely declaration of renunciation, the deadline may still be missed and the renunciation may not be effective if the authorisation decision of the guardianship court is not sent to the probate court in good time.
The guardianship court does not forward the authorisation decision to the probate court on its own initiative. The guardian must therefore ensure that he/she immediately applies for a note of legal force. Then, in order for the waiver to become effective, the guardian must forward the authorisation decision with the note of legal force to the probate court.
Because the guardianship court does not notify the probate court of the authorisation decision, but rather the guardian, the latter can reconsider after receiving the authorisation decision whether the waiver is (still) in the best interests of the legally incapacitated heir. However, the guardian must keep an eye on the expiry of the deadline for the waiver. The guardian is therefore not obliged to forward the decision of the guardianship court to the probate court. However, the guardian's decision must be in the best interests of the incapacitated heir. If, for example, the estate is over-indebted and the guardian does not dispose of the estate in good time or does not request the authorisation of the disinheritance by the probate court in good time or does not forward the authorisation decision with a note of legal force to the probate court in good time, the guardian may be liable to pay compensation to the heir in question.