What is a surrogate brother

Current legal information

What if my legacy dies before me?

As you grapple with the difficult task of organizing your estate and writing a will, there are likely many questions on your mind. This is right and important, because after your death nobody can ask you how you imagined the distribution of your estate. It is therefore absolutely important that you present your last will as precisely and legally precisely as possible so that there are no more doubts afterwards and your estate and your family are not burdened by inheritance disputes.

But it is also important to take precautions in the event that things don't go as planned. Your last will should cover all eventualities if possible, you have to think outside the box.

Such a question would be, for example:

What should happen to your estate if the person you appointed as heir dies before you?

You can address this question in your will by inserting a Substitute heirs answer.

The substitute heir is the person who is to receive the estate if the actual heir is no longer available as an heir, for example because he himself has already died or has rejected the inheritance.

Why do I need a replacement heir?

The situation in which your actual inheritance fails and you need a replacement heir can arise for many reasons.

  • For example, the heir may die before you die,
  • he can turn down the inheritance (§ 1953 BGB) or
  • turn out to be unworthy of inheritance (§ 2344 BGB).
  • It can also be that his appointment of the heir is effectively contested (§§ 2078ff. BGB).

What happens if I have not appointed a replacement heir?

If you have not appointed a replacement heir, a distinction must be made between two situations. Are there multiple heirs or was only one inheritance established?

If you have considered several people in your will and one of these heirs ceases to exist, the share of the other people's inheritance increases according to their share of the inheritance ("accrual" according to § 2094 BGB).

example: You have named your three siblings as heirs. One brother dies before the inheritance.

In this case, the inheritance of the older brother would be divided between the other two siblings.

If you have only considered one person to be the heir and this person ceases to exist without a substitute heir, then the will must first be interpreted. Here again, three cases must be distinguished from one another. You have given consideration to an offspring, you have given consideration to another relative (not a descendant), or you have given consideration to a person who is not related to you.

Child or grandchild as sole heir

In the event that you have appointed one of your children or grandchildren as sole heirs, the law assumes that you wanted to appoint their descendants as substitute heirs (Section 2069 BGB).

example: If you have appointed one of your daughters as the sole heir and this daughter fails as an heir, then according to the interpretation of your will, her children will inherit.

Sister or brother as sole heir

If you have appointed another close relative, for example your sister or half-brother, as the sole heir, then something similar applies. The interpretation of the courts (e.g. Bavarian Supreme Regional Court decision of January 25, 2000, Az .: 1Z BR 181/99) assumes in such cases that you wanted to appoint their descendants as substitute heirs. Such an interpretation is not possible without further ado, but should be hinted at in the will.

Friend as sole heir

Such an interpretation does not take place, however, if you have appointed a single heir who is not related to you at all or only in a distant relationship. It must be assumed here that you did not want to consider a replacement heir.

No substitute inheritance - legal succession!

If the probate court cannot interpret your last will to the effect that you wanted to appoint a substitute heir, then the legal succession takes the place of your will.

Conclusion: It is extremely important to write your last will as precisely as possible and without open questions. This also includes thinking about substitute heirs. If you have a clear idea of ​​who should become an heir or who should definitely not become an heir, you should also think about possible alternatives.

Formulation examples for the appointment of substitute heirs in the will:

Sole heir
I am calling my daughter Maria Mustermann née Musterfrau as my heiress. As replacement heirs, my two sisters Martha and Louise are to inherit in equal parts.

Substitute heirs if there are several heirs
I am calling my two sisters Martha and Louise to be my heirs. My friend Susanne is supposed to be a replacement heir for Martha. My friend Max is supposed to be the replacement heiress for Louise.

Your contact in inheritance law:
Lawyer Alexander Grundmann, LL.M., Leipzig
Grundmann Häntzschel Attorneys at Law
Phone: 0341/22 54 13 82

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