Many people, especially those of advanced age, wonder who should inherit their assets. If there is no will, the statutory rules of inheritance apply, according to which the spouse usually receives half of the estate and the children divide the remaining portion among themselves. However, not everyone agrees with this arrangement.
In such cases, a Berlin Testament can create clarity. “Here we explain what this type of will is, its advantages and disadvantages, and how it affects the children,” says lawyer István Cocron.
What is the Berlin Testament?
The Berlin Testament, also known as a joint will, is a special form of will. It allows married couples or registered civil partners to appoint each other as sole heirs. The children are typically designated as final heirs, meaning they only inherit after both parents have died. The assets of the first deceased partner thus pass to the surviving partner, effectively disinheriting the children initially.
This approach is called a unified solution and is the usual procedure. The assets are considered a single unit over which the surviving partner has full control. However, the children retain their right to a compulsory share.
In the alternative model, the so-called separation solution, the deceased’s assets remain separate. In this case, the surviving partner has only limited access to the inherited assets. This solution is particularly relevant for real estate.
Advantages of a Berlin Testament
A joint will (or Berlin will) offers several advantages. It allows assets to pass to the surviving partner without inheritance disputes. This is particularly beneficial if the assets consist primarily of real estate in which the surviving partner wishes to continue living. “Without a joint will, it might be necessary to pay out the children their share, which would often result in the sale of the property. With a joint will, the inheritance is only divided among the children after the death of both parents,” explains attorney Cocron.
The Berlin Testament and binding dispositions
In a joint will, such as a Berlin will, so-called reciprocal dispositions can be included. These are provisions where one disposition would not be valid without the other, such as the mutual appointment of heirs or the designation of children as final heirs. Such dispositions cannot be unilaterally revoked by the testators.
Revocation and amendments to a will
Another advantage is transparency. The will can only be changed jointly by drawing up a new will and destroying the old one. If, however, only one partner wants to make a change, they must arrange for a notarized revocation, which is then served on the other partner. After the death of one partner, however, the will can no longer be changed.
Disadvantages of the Berlin Testament
A Berlin Testament can have tax disadvantages. For larger estates, it may be more advantageous to make optimal use of the inheritance tax allowances. Children have an allowance of €400,000 per parent. However, since they receive everything as the final heirs in one go, they can only use this allowance once.
Berlin Testament in cases of divorce and remarriage
In the event of a divorce, a Berlin Testament usually becomes invalid. However, it is advisable to explicitly destroy the will even then. Furthermore, in the case of remarriage, it can be useful to include a release clause or remarriage clause in the will, ensuring that in the event of remarriage, the inheritance, or parts thereof, pass to the children.
Children’s compulsory share of the inheritance
While a Berlin Testament typically doesn’t stipulate that children can claim their compulsory share upon the death of the first parent, in some cases children do so. In such cases, the so-called penalty clause for claiming the compulsory share applies, which states that a child who claims their compulsory share after the death of one parent will only receive their compulsory share upon the death of the second parent as well.
Drafting a Berlin Testament
A Berlin Testament can be handwritten, with one partner writing it and the other signing it with the place and date. “Alternatively, a notary can draw up such a will. The notary fees depend on the net value of the estate,” explains lawyer Cocron from the Cocron law firm.
Templates for a Berlin Testament
There are many templates for Berlin-style wills available online, but they usually only cover general cases. A will must be handwritten. Before using a template, you should check whether specific clauses, such as a penalty clause for claiming a compulsory share, a remarriage clause, or provisions for the distribution of assets, need to be included.
Additional clauses in the Berlin Testament
In addition to the aforementioned clauses such as the release or remarriage clause, further regulations can be included, for example regarding the distribution of assets among the children, in order to avoid later conflicts.
