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Deposit and amendment of a will

19.05.2021 – 16:07

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The legal succession guarantees the transfer of assets to a spouse or partner and biological children. According to the legal inheritance law, the biological children become co-heirs when the first spouse / partner dies. If children come from only one spouse / partner at a time, it is left to the chance of life which consequences under inheritance law arise in relation to the existing assets, which can lead to considerable disputes among the heirs. If there are no children and spouses / life partners, the legal succession of siblings and their descendants or even more distant relatives usually does not correspond to the expectations of the respective testator.

It is therefore advisable to draw up a will in order to fulfill the wishes and ideas with regard to the distribution of assets in the event of death and to seek advice in advance, ideally in cooperation with a lawyer specializing in inheritance law.

There are a multitude of design options through which the later enforcement of the will of a testator can be guaranteed through a will. Security also includes the recommendation of an official deposit and a later review and, if necessary, amendment or addition to the will, which is explained below.

Safekeeping options

According to inheritance law, there is no obligation to deposit a private will with a government agency or a court. If this is kept at home or by a third party, it is effective but not guaranteed that it will be found or handed over to the probate court. In the case of storage in a safe deposit box, the future heir or a third party must be authorized to dispose of the safe deposit box by means of a power of attorney. Otherwise the will could not be easily removed from the locker.

Because after the death of a testator, private wills must first be formally opened by the local court. Only then can a certificate of inheritance be issued or a certified copy of the will and the opening protocol be made available to the estate.

It is therefore recommended as the only secure variant to deposit a private will in the local court responsible for the place of residence (probate court). This is the only way to guarantee that this will be found after death and that the dispositions contained therein can be officially made known to the named heirs and other beneficiaries and thus implemented.

However, if you decide to keep it private, it is recommended that you discuss the resulting risks with a lawyer specializing in inheritance law in advance.

A notarized will is also deposited by the notary at the competent local court.

A depository receipt is issued by the local court and the entry is made in the central register of wills.

There are currently costs of 75 euros for filing with the local court and 15 euros for entries in the central register of wills.

Subsequent adjustment of the will

A will is not set in stone. From time to time it should therefore be considered - if necessary with the assistance of a lawyer for inheritance law - whether and which changes and additions to the will are necessary.

Especially when the existing financial circumstances, one's own family situation or those of beneficiaries have changed, there is often a need for change.

Every will can be revoked, completely amended or only supplemented. Depending on whether the will was drawn up in private or notarial form, different consequences must be observed.

Both types of will can be withdrawn from official custody at the local court at any time without giving reasons.

If this is done with a notarial will, this will be immediately treated as ineffective with its entire content and the legal succession will initially take effect again. A privately written will, on the other hand, remains effective until it is either destroyed or canceled by a will drawn up later.

If changes and additions to inheritance law are intended, a specialist lawyer for inheritance law should check whether the existing will from official custody can be withdrawn and completely replaced. Or whether it is sufficient to just write a supplement and deposit it with the local court. Even with a notarial will, the addition can be made by hand according to the same regulations that apply to the creation of a private will. Every change and addition to the local court results in costs of 75 euros there.

Even if a deposited will is not withdrawn from custody, the outdated will can be completely revoked by means of a new or supplementary will and a new or only supplementary attestation can be made. In the event of a complete change, only the last written content of the will applies.

Special features of inheritance law have to be taken into account in some cases for spouses / life partners. A will that has been drawn up jointly can only be withdrawn jointly from official custody. If only one of them wants to change the alternate dispositions during the lifetime of the other, this is only permissible by notarial revocation vis-à-vis the other (§§ 2271 Abs. 1, 2296 BGB). After the death of the first of them, the revocation is no longer possible and in case of doubt there is a binding effect according to § 2270 BGB. Even in these cases, however, an amendment to the joint will is not always ruled out. If this is intended, an examination by a specialist lawyer for inheritance law is urgently recommended.

Law firm Gründig Königstraße 11 01097 Dresden Tel .: 0351 56340680 Fax: 0351 563406819 E-Mail: [email protected] Website: https://www.rae-gruendig.de