Special cases regarding inheritance
Certain inheritance cases are so unique that they are often not covered in standard legal texts. This includes, for example, situations where someone dies abroad or leaves assets there. An heir may also be part of a community of heirs but be untraceable or legally incapacitated. In these cases, it is common practice to appoint an executor to ensure the proper administration and distribution of the estate.
Heirs who cannot act themselves
This explains what happens when minor or unborn children inherit, when the heir is legally incapacitated, or when a guardian has been appointed. Unborn children are considered entitled to inherit as soon as they are born alive. For minor heirs, the parents or court-appointed guardians manage the inheritance until the child reaches the age of majority. Minors are not fully legally competent and therefore cannot enter into binding contracts.
Minor heirs
Minor heirs have all inheritance rights from birth, but their legal capacity is limited until they reach the age of 18. During this period, parents or guardians can manage the child’s assets. Should one parent die, the other parent assumes management, unless otherwise stipulated in a will. Court-appointed guardianship can also be established if the parents are no longer able to manage the assets.
Adult heirs
There are cases in which adult heirs are legally incapacitated due to a permanent mental or physical impairment. In such cases, a guardian is appointed to assist the heir in managing the inheritance. The guardian can be appointed by the court if the heir is unable to manage their own financial affairs.
This overview provides insight into the legal and practical challenges of administering estates when heirs are minors, legally incapacitated, or absent. “Such arrangements are necessary to ensure that the estate is administered in accordance with the deceased’s wishes and that no legal disputes arise,” explains attorney István Cocron of the Cocron law firm.
Guardianship and legal capacity
Not all individuals under guardianship are automatically legally incapacitated. Legally competent individuals under guardianship can certainly enter into legal transactions themselves, but require the consent of their guardian or the guardianship court for certain actions.
In cases where guardians are assigned specific tasks by a guardianship court, such as asset management, they can, for example, handle real estate within an estate or disclaim an inheritance. However, court approval is always required. While parents, as legal guardians, cannot be deprived of their rights through a will, the situation is different for guardians – they need court authorization to manage inheritance matters.
Gifts for caregivers
Close relationships often develop between those receiving care and their caregivers, especially when care is provided at home. However, if a caregiver is named in a will or receives generous gifts, this can raise legal concerns. Therefore, accepting gifts should be carefully considered, particularly when substantial assets are involved. In such cases, sums between 50 and 100 euros for special occasions are common and acceptable.
Unknown heirs
It sometimes happens that heirs are unknown or cannot be reached, even though they are named in the will. In inheritance cases with an international element, this can become difficult because not all countries maintain residency records, or the search can be expensive and time-consuming. If someone moves abroad or breaks off contact, the probate court can appoint an administrator of the estate to secure the inheritance.
Inheritance problems abroad
Inheriting real estate or a bank account abroad presents additional challenges, particularly regarding tax and legal aspects. Within the EU, the European Succession Regulation (EU Succession Regulation) governs such cases, but outside Europe, such as in Switzerland or Singapore, different rules may apply. “Within the scope of the EU Succession Regulation, an heir or executor often needs to be legitimized by a European Certificate of Succession (ECS), while outside the EU, country-specific regulations apply,” explains lawyer István Cocron.
Example: International choice of inheritance law
A Frenchman living in Germany chooses to have his estate governed by French inheritance law and later dies in Germany. The German probate court then issues a European Certificate of Succession (ECS) based on French law.
Outside the scope of the EU Succession Regulation (EU Succession Regulation), Anglo-American countries often have national rules where the inheritance law of the country where the property is located is decisive. The courts there apply their own law, which can lead to a so-called division of the estate. In this case, the inheritance is dealt with according to the deceased’s country of residence, while real estate is governed by local regulations.
International Agreements
For Germany, for example, an old agreement with Turkey from 1929 is relevant, which stipulates how movable property is to be handled. This agreement also stipulates that tax obligations for inheritances can arise in both countries.
Property law abroad
Another important regulation concerns property law in multinational marriages. Since 2019, the European Matrimonial Property Regulation (EU Matrimonial Property Regulation) has governed in 18 EU countries which assets are considered joint property of spouses. This regulation affects the distribution of assets in the event of inheritance, particularly for couples who have lived in different countries. “Often, the decisive factor is the law of the country where the partnership existed or the state with which the deceased person had a close connection,” says lawyer Cocron.
Deceased persons abroad
A death abroad presents particular challenges, such as obtaining death certificates and transferring the estate. It is important for the heirs to know that the probate court at the deceased’s place of residence has jurisdiction and applies local inheritance law in such cases, unless otherwise agreed.
Avoid double taxation
If an heir lives abroad and the deceased was from another country, double inheritance tax may apply. This double taxation occurs when both the deceased’s country and the heir’s country levy taxes and no agreement exists to avoid this double taxation.
