Curse and Blessing of the Notarial Estate Register in the Law on the Right to a Compulsory Share of the Estate

05.07.2021

If the testator excludes his or her descendant or spouse from the succession by testamentary disposition, the descendant or spouse may claim the compulsory portion from the heir designated by the testator (section 2303 of the Civil Code). The legal heir is therefore not completely excluded from a share in the inheritance, but the compulsory share that can be claimed from the heir is reduced to half of the share of the inheritance actually intended by law. If a child's share of the inheritance would therefore comprise half of the inheritance under the law, his or her compulsory share is assessed at one quarter.

Although the compulsory portion arises by law upon inheritance, it must be asserted by the beneficiary against the heir in order to be enforced. If this is not done despite knowledge of the inheritance, the claim to the compulsory portion becomes time-barred according to the standard three-year limitation period (Sec. 195 BGB).

The compulsory portion represents a monetary claim of the beneficiary of the compulsory portion against the heir. In order to be able to determine the amount of this monetary claim, the basis of assessment in the form of the amount of the estate assets must first be determined by the heir, as he/she is obliged to provide the beneficiary of the compulsory portion with information on this (§ 2314 BGB). The heir must therefore determine and compile the assets of the estate as well as the estate liabilities in order to determine the net assets of the estate, on the basis of which the claim to the compulsory portion against payment can then be calculated and paid out.

Section 2314 (1) sentence 3 of the Civil Code provides the beneficiary of the compulsory portion with a double-edged sword in that he or she can demand that the testator draw up the list of the estate by a notary. In the past, the beneficiaries of the compulsory portion have only made use of this option in exceptional cases, as in the vast majority of cases the heir and the beneficiary of the compulsory portion were able to agree on the content of the estate register and the determination of the value of the estate with the active assistance of their legal and other advisors without the involvement of a notary.
 

Current developments regarding the notarial estate register

In recent times, it seems to have become fashionable to use the demand for a notarial estate inventory as a means of exerting pressure on the heir when enforcing claims to the compulsory portion. However, in such a supposedly clever move, it is often misjudged that it is not enough to notarize a list of the estate drawn up by the heir and, as far as possible, supported by documentary evidence for the purposes of proof. This is because the notary entrusted with the estate list by the heir is responsible for its content and is therefore required to carry out his own research of his own accord in order to ascertain the composition of the estate. The heir, for his part, is required to support the notary commissioned by him in this respect by providing the notary with truthful and complete information and evidence on the estate inventory determined by the heir as well as on gifts/grants made by the testator.

If, however, the heir does not have statements of the decedent's accounts going back ten years since the inheritance, for example, the notary must request these either himself or via the heir from the credit institutions concerned in order to clarify possible claims to a supplement to the compulsory portion under section 2325 of the Civil Code from earlier gifts made by the decedent. The provision of these account statements can be associated with considerable costs, which - like the notary's fees - must be borne by the estate (§ 2314 Paragraph 2 BGB). These costs, which place an additional burden on the estate, therefore reduce the amount of the claim to the compulsory portion as a result, in particular if the research carried out by the notary does not lead to an increase in the claim to the compulsory portion. In addition, the payment of the compulsory portion to the beneficiary is delayed by several months, as the notary's research into, among other things, bank accounts and documents, insurance contracts and the decedent's real estate assets will regularly take up a considerable amount of time.
 

Practical tip

If the beneficiary of the compulsory portion does not have any valid indications that the list of the estate submitted and supported by the heir is or could be incomplete or incorrect, the additional request for a notarial list of the estate appears to be downright counterproductive. This is because the additional costs thus triggered and the resulting delay are virtually contrary to the interests of the beneficiary of the compulsory portion under such circumstances.

The demand for a notarial estate inventory should therefore be well considered and carefully weighed up by the beneficiary of the compulsory portion.