Inheritance Law / Estate Planning
With a team of specialized inheritance lawyers we provide broad support and substantial advice for our clients, both domestic and international.
Preserving family estates over generations
About 70 years after the end of the Second World War, the post-war generation has re-established significant assets, which shall be protected for the next generations and thus can be used to provide for the family members. This cannot be sufficiently attained by the statutory provisions of the inheritance law and even testations often miss their purpose.
The specialist lawyers for inheritance law of HUEMMERICH legal cooperate with the in-house business lawyers of HUEMMERICH legal and are able to create smart designs and testamentary arrangements that provide long-term asset protection over generations taking into account the care aspect and make sure you will not be forced to give up your assets during your lifetime.
Disputes about Compulsory Portions
The specialized lawyers of HUEMMERICH legal know the three points of view:
- The position of the beneficiary of the compulsory portion who is lacking information about the estate,
- the position of the heir who is facing the outflow of liquidity resulting from the estate tax and besides is exposed to the payment claim of the beneficiaries of the compulsory portion at the same time,
- and finally the position of the testator who wants to limit or exclude the compulsory portion of his descendant for whatever reason.
Due to the knowledge of all these divergent legal positions, our lawyers are able to insistently represent your interests in such a dispute. In some cases, the entitlement to a compulsory portion provides an attractive option for the optimal inheritance tax structuring. Another possibility might be to tactically disclaim the inheritance and reject it, if it is restricted by a testamentary burden and therefore turns out to be economically disadvantageous in comparison to the right to a compulsory portion. Beyond that, a good and detailed legal advice at the beginning of a possible lawsuit may reveal that the dispute does not pay off for the parties. In some cases, especially when the testamentary disposition is not unambiguous, a settlement out of court can provide an appropriate solution as well. This can also lead to positive inheritance tax effects. This way even definitive tax assessments can be modified retrospectively, if the legal wording is precise enough. Those who take advice on time do not have to be at the mercy of fate and have the opportunity to gain clarity about their true legal position.
Inheritance disputes at court
Inheritance disputes are among the fiercest and most costly ones of all disputes conducted before courts, so you can rightfully say that these disputes have their own psychology.
In some cases, inheritance disputes have destroyed private assets and have ruined several companies, although it should be possible to avoid this sort of lawsuits. A tailored estate planning regarding your specific needs, which is performed within the framework of inter-professional cooperation between legal advisors, tax consultants and investment advisors including a mediator, can reveal and avoid possible problems in advance due to highly elaborated legal and economic arrangements.
Unfortunately, our practical experience has shown that even people actually interested in estate planning, often take inadequate and rudimentary advice, in parts solely based on standard forms and clauses. Furthermore, estate planning is rarely a business goal to companies and nearly never subject to a business plan. With its various interconnections to other legal fields and subject areas, inheritance law is among the most sophisticated and complicated legal subjects. The lawyers of HUEMMERICH legal are specialised in inheritance law and provide wide experience in succession planning. As experienced litigators they know hundreds of legal proceedings and are therefore also accustomed with disputes in court. They are aware that courts can produce bizarre results by interpreting testaments, but you can be assured to benefit from the experience of the lawyers of HUEMMERICH legal.
Or could you imagine a case in which a testator excluded his relatives from the succession with a formally valid testament but in the end the deciding court appointed them as heirs?
If a dispute is unavoidable despite all precautions and when it is beyond budgets (losing a legal dispute through three instances and an estate value of about 400,000 € can lead to procedural costs reaching six figures), the specialised lawyers of our team can establish contact with a litigation funder, to whom we maintain a good relationship and with whom we have already cooperated successfully to benefit our clients. After accepting the case, he will estimate the risk of legal costs and will take a certain percentage of the result.
If you are interested in this approach, we will be pleased to explain further details.
International Inheritance Law
International Inheritance Law
Estate planning is particularly demanding in cases with a foreign connection. Such a foreign connection is more common than you may estimate due to the Regulation (EU) No 650/2012 in matters of succession. This regulation has been implemented in Germany and most European countries on the 17th of August 2015. Since then the applicable law is no longer depending on the nationality of the deceased but on his last habitual residence, which should not be confused with the permanent residence. For example, if the death occurred in Spain, which had been the last habitual residence of the deceased, the Spanish law of succession has to be applied to his or her entire estate no matter, if the estate is in Spain or abroad. This can only be avoided through a testamentary choice of the applicable inheritance law, e.g. the law of the testator’s country of citizenship. In this case a last will is mandatory.
But even when the above-mentioned regulation is not applicable, also special parameters like mixed marriages, a permanent address or a habitual residence abroad, composing the last will abroad or even just the cottage in the preferred holiday country etc. can have the effect that German inheritance law is not to be applied. The fully or partially applicable foreign inheritance law does not recognize typical German testation instruments, for example, the mutual wills of spouses. Additionally, often the statutory compulsory portions differ in other countries.
Frequently, it is sufficient to add a simple supplementary clause to your existing testamentary disposition (even a notarised last will may be complemented or modified with a handwritten last will) in order to realise your wishes.
If the succession has already occurred and foreign law is applicable, the specialised lawyers of HUEMMERICH legal will help you to assert your rights. Beside their own wide knowledge they also have good relationships to foreign lawyers and notaries and can connect you with them.
Arbitration and Inheritance
Even if you do not want to join the ones who criticize the German jurisprudence, you have to admit that the judicial system has its limits.
This is particularly obvious in respect of inheritance law, where often high asset values and divergent family interests are affected. It is a known fact that inheritance law plays a subordinate role for law students. Additionally, there is no special civil jurisdiction for disputes concerning inheritance law at district courts. In principle, the human resources policy in courts is not oriented towards the specialisation of the individual judge but on the creation of a universal judge, who has to fulfill unpopular tasks in order to advance his career. However, the German law provides an opportunity to evade the inadequacies of state justice. By making a testamentary disposition the (future) testator can determine that all or certain claims shall be assigned to a specialised arbitral tribunal and he can exclude ordinary courts.
The testator can assign the members of the arbitral tribunal and determine the code of procedure. Such a provision is interesting for people who care about the judge, as well as for those who want to keep the disputes within the family and to avoid negative publicity. Even if the succession has already taken place and a dispute is about to arise, it is possible to agree on a subsequent arbitral tribunal in order to prevent legal proceedings and cost risks.
The specialised lawyers of HUEMMERICH legal are ready to discuss this opportunity with you and can give you qualified recommendations on the nomination of an arbiter. Moreover, lawyers of HUEMMERICH legal are arbitrators themselves and represent clients in arbitration proceedings.