Bequests of movable and immovable property in Germany and holiday property in Spain

A bequest is a testamentary donation of a pecuniary advantage to another person without the latter being designated as an heir.

Example:

Testator E appoints his wife F as his sole heir and bequeaths an apartment building to his daughter and a stamp collection to his best friend A.

Although the daughter receives a property from the estate, she is not an heir. The same applies to the best friend A, who receives an item from the testator's assets. Nevertheless, from a legal point of view, he is not an heir either. Daughter T and boyfriend A both have a contractual claim to the performance of the bequeathed items. The daughter can demand that the apartment building be transferred to her and boyfriend A can demand the stamp collection. In the case of immovable property, i.e. immovable property, the transfer is carried out by relinquishment and registration in the land register. For this purpose, the parties involved must usually sign a notarial bequest performance contract.

A bequest must be made by testamentary disposition (will or contract of inheritance). In this way, the emergence of a community of heirs can be avoided. Nevertheless, the testator can bequeath individual items to persons without them becoming members of the community of heirs.

The bequest may also consist of a lifelong right of residence or a lifelong right of usufruct in a property being granted to a person.

Example: Spouses E and F have appointed each other as sole heirs. E is the sole owner of a single-family house in Dortmund. For his son S, E has made a bequest to the effect that in the event of E's death, S will receive the single-family home in Dortmund. In addition, E has ordered that this be done with the proviso that F is granted a lifelong right of usufruct should she survive him.

This arrangement balances the interests of the surviving spouse in the use of the property and the safeguarding of the estate for the son S.

Important:

In Germany, it is not legally possible to "bequeath" individual items. It is therefore not possible to testify as follows:

"My house is inherited by my wife, my car is inherited by my son, and my securities account is inherited by my daughter."

In practice, however, it happens that testators leave a handwritten will in this form. In this case, the will must be interpreted. This is because it is not clear whether the testator wished for the parties involved to become heirs or whether he wanted to distribute items to individual persons by way of legacy. This can lead to the fact that it is not clear what a certificate of inheritance should be and that a long probate court procedure must therefore be initiated to clarify the status of heirs. In order to avoid this, clear instructions should be found in the will, which make it legally clear to distinguish between the heir and the legatee. In the case of a notarial testamentary disposition that contains clear regulations, the heirs can in many cases even save themselves the trouble of applying for a certificate of inheritance.

If the testator has a holiday property in Spain, he or she can also order a bequest in this regard in his German will. If the beneficiary asserts his legacy, the heir is obliged to transfer the property to the legatee in Spain. The testator has numerous possibilities to create a legacy. He should also make use of this in his testamentary disposition.

The beneficiary must know that he can always assert the bequest, because it is subject to different limitation periods. Since the bequest is merely a claim under the law of obligations, the testator can order the execution of the will for the fulfilment of the bequest in order to minimise the risks resulting from the purely contractual character. It should be noted that the execution of a will can only be ordered by will or contract of inheritance.

The costs of the performance of the bequest must be borne by the complainant, unless the will contains a different order.