Substitute heir - Plan B for the succession
Sometimes unexpected deaths mean that a person's planned succession can no longer be realised, especially if the person appointed as heir dies unexpectedly before the testator himself. If the testator does not make an alternative disposition, the intestate succession that was not actually intended by the testator may take effect.
Example: A childless testator has appointed his long-term partner as his sole heir. The testator's siblings are not to be remembered. If the partner dies unexpectedly before the testator, the testator's parents or their descendants, i.e. in particular the siblings and cousins of the testator, become the heirs by intestate succession.
Testators should therefore consider the eventuality that the beneficiary dies or the beneficiary renounces the inheritance or legacy.
What is a substitute heir?
A substitute heir is a person who is appointed as heir in the event that an heir ceases to exist before or after the death of the deceased (Section 2096 BGB).
The subsequent heir must be distinguished from the substitute heir. They only become heirs after the previous heir has become the testator's heir. The substitute heir, on the other hand, only becomes an heir once the actual heir has ceased to exist.
It depends on the will of the testator whether someone is to be a subsequent heir or a substitute heir. In case of doubt, the interpretation rule of Section 2102 (2) BGB applies, according to which the person appointed is deemed to be a substitute heir.
How do I appoint someone as a substitute heir?
Substitute succession can be ordered. The alternative succession must be expressly ordered or at least be apparent from the interpretation of the will.
If the testator has provided for his descendants in his will and a descendant ceases to exist after the disposition of property upon death has been made, then, in accordance with Section 2069, it must be assumed in case of doubt that his descendants will take his place as substitute heirs.
Example of an appointment as substitute heir:
„I hereby appoint my daughter T as my sole heir. I name the son of my daughter S as my substitute heir.“