Last Updated on July 1, 2021 by LawEuro
German Civil Code (BGB) German law
Book 5
Law of Succession
Division 1
Succession
Section 1922
Universal succession
(1) Upon the death of a person (devolution of an inheritance), that person’s property (inheritance) passes as a whole to one or more than one other persons (heirs).
(2) The share of a co-heir (share of the inheritance) is governed by the provisions relating to inheritance.
Section 1923
Capacity to inherit
(1) Only a person who is alive at the time of the devolution of an inheritance may be an heir.
(2) A person who is not yet alive at the time of the devolution of an inheritance, but has already been conceived, is deemed to have been born before the devolution of an inheritance.
Section 1924
Heirs on intestacy of the first degree
(1) Heirs on intestacy of the first degree are the descendants of the deceased.
(2) A descendant living at the time of the devolution of an inheritance excludes the descendants related to the deceased through himself from the succession.
(3) If a descendant is no longer living at the time of the devolution of an inheritance, the descendants related to the deceased through him take his place (succession per stirpes).
(4) Children inherit in equal shares.
Section 1925
Heirs on intestacy of the second degree
(1) Heirs on intestacy of the second degree are the parents of the deceased and their descendants.
(2) If the parents are living at the time of the devolution of an inheritance, they inherit alone and in equal shares.
(3) If at the time of the devolution of an inheritance the father or the mother is no longer living, the place of the deceased parent is taken by his descendants under the provisions governing succession by heirs of the first degree. If there are no descendants, the surviving parent inherits alone.
(4) In the cases under section 1756, the adopted child and the descendants of the natural parents or of the other parent of the child are not heirs of the second degree in relation to each other.
Section 1926
Heirs on intestacy of the third degree
(1) Heirs on intestacy of the third degree are the grandparents of the deceased and their descendants.
(2) If the grandparents are living at the time of the devolution of an inheritance, they inherit alone and in equal shares.
(3) If the grandfather or the grandmother of one set of grandparents is no longer living at the time of the devolution of an inheritance, the place of the deceased grandparent is taken by his descendants. Where there are no descendants, the share of the deceased grandparent falls to the other grandparent and, if the other grandparent is no longer living, to the other grandparent’s descendants.
(4) If one set of grandparents are no longer living at the time of the devolution of an inheritance and there are no descendants of the deceased grandparents, the other grandparents or their descendants inherit alone.
(5) To the extent that descendants take the place of their parents or more remote forebears, the provisions governing succession by heirs of the first degree apply.
Section 1927
More than one share of the inheritance in the case of multiple relationship
If a person belongs to more than one stirps in the first, the second or the third degree, he receives the shares due to him in each of these stirpes. Each share is deemed to be a separate share of the inheritance.
Section 1928
Heirs on intestacy of the fourth degree
(1) Heirs on intestacy of the fourth degree are the great-grandparents of the deceased and their descendants.
(2) If great-grandparents are living at the time of the devolution of an inheritance, they inherit alone; more than one inherit in equal shares, irrespective of whether they belong to the same line or different lines.
(3) If great-grandparents are no longer living at the time of the devolution of an inheritance, the one of their descendants who is most closely related to the deceased by degree inherits; more than one equally closely related descendant inherit in equal shares.
Section 1929
More distant degrees
(1) Heirs on intestacy of the fifth degree and of the more distant degrees are the more distant forebears of the deceased and their descendants.
(2) The provision of section 1928 (2) and (3) applies with the necessary modifications.
Section 1930
Priority of the degrees
A relative is not entitled to inherit as long as a relative of a preceding degree survives.
Section 1931
Right of intestate succession of the spouse
(1) The surviving spouse of the deceased as an heir on intestacy is entitled to one quarter of the inheritance together with relatives of the first degree, and to one half of the inheritance together with relatives of the second degree or together with grandparents. If there are both grandparents and descendants of grandparents living, the spouse also receives the share of the other half that under section 1926 would pass to the descendants.
(2) If there are relatives neither of the first nor of the second degree nor grandparents living, the surviving spouse receives the whole inheritance.
(3) The provision of section 1371 is unaffected.
(4) If at the time of the devolution of the inheritance there was separation of property and if one or two children of the deceased are entitled as heirs on intestacy together with the surviving spouse, the surviving spouse and each child inherit in equal shares; section 1924 (3) applies in this case too.
Section 1932
Preferential benefit of the spouse
(1) If the surviving spouse is an heir on intestacy together with relatives of the second degree or together with grandparents, the spouse has a right, in addition to the shares of the inheritance, to the objects belonging to the marital household, to the extent that these are not accessories to a plot of land, and to the wedding presents, as a preferential benefit. If the surviving spouse is an heir on intestacy together with relatives of the first degree, the spouse has a right to these objects to the extent that he needs them to maintain a reasonable household.
(2) The preferential benefit is governed by the provisions applying to legacies.
Section 1933
Exclusion of the right of succession of the spouse
The right of succession of the surviving spouse and the right to the preferential benefit are excluded if at the time of the death of the deceased the requirements for the dissolution by divorce of the marriage were satisfied and the deceased had petitioned for or consented to the divorce. The same applies if the deceased was entitled to petition for the annulment of the marriage and had filed the petition. In these cases, the spouse is entitled to maintenance under sections 1569 to 1586b.
Section 1934
Right of succession of spouse who is a relative
If the surviving spouse is one of the relatives entitled to inherit, he inherits at the same time as a relative. The share of the inheritance that passes to him by reason of the relationship is deemed to be a separate share of the inheritance.
Section 1935
Consequences of increase of share of the inheritance
If an heir on intestacy ceases to be an heir before or after the devolution of an inheritance, and if as a result of this the share of the inheritance of another heir on intestacy is increased, the proportion by which the share of the inheritance increases is deemed to be a separate share of the inheritance with regard to the legacies and testamentary burdens to which this heir or the heir who has ceased to be an heir is subject, and with regard to the duty to adjust advancements.
Section 1936
Right of intestate succession of the State
If at the time of the devolution of the inheritance neither a relative, nor a spouse, nor a civil partner of the deceased is living, the Land in which the deceased had his last place of residence or, if none such is ascertainable, his customary place of residence at the time of the devolution of the inheritance is the heir. In other cases, the Federal Government is the heir.
Section 1937
Appointment of heir by testamentary disposition
The deceased may appoint an heir by a unilateral disposition mortis causa (will, testamentary disposition).
Section 1938
Disinheritance without appointment of an heir
The deceased may by will exclude a relative, his spouse or his civil partner from intestate succession without appointing an heir.
Section 1939
Legacy
The deceased may by will give a material benefit to another person without appointing the other person as heir (legacy).
Section 1940
Testamentary burden
The deceased may by will oblige his heir or a legatee to perform an act without giving another person a right to the performance (testamentary burden).
Section 1941
Contract of inheritance
(1) The deceased may appoint an heir and grant legacies and impose testamentary burdens by contract (contract of inheritance).
(2) Both the other party to the contract and a third party may be appointed as an heir (contractual heir) or as a legatee.
Division 2
Legal position of the heir
Title 1
Acceptance and disclaimer of the inheritance; supervision of the probate court
Section 1942
Devolution and disclaimer of the inheritance
(1) The inheritance passes to the entitled heir irrespective of the right to disclaim it (devolution of the inheritance).
(2) The treasury may not disclaim the inheritance that devolves on it as the heir on intestacy.
Section 1943
Acceptance and disclaimer of the inheritance
The heir may no longer disclaim the inheritance if he has accepted it or if the period laid down for disclaimer has passed; on the expiry of the period, the inheritance is deemed to have been accepted.
Section 1944
Period for disclaimer
(1) Disclaimer may be made only within six weeks.
(2) The period begins on the date on which the heir obtains knowledge of the devolution and of the reason for his entitlement. If the heir is entitled by a disposition mortis causa, the period does not begin before the notification of the disposition mortis causa by the probate court. The provisions of sections 206 and 210, governing limitation, apply with the necessary modifications to the running of the period.
(3) The period is six months if the deceased had his last residence only abroad or if the heir is resident abroad at the beginning of the period.
Section 1945
Form of disclaimer
(1) The disclaimer is made by a declaration to the probate court; the declaration must be made in the presence of and recorded by the probate court or in notarially certified form.
(2) The record of the probate court is made under the provisions of the Notarial Recording Act [Beurkundungsgesetz].
(3) An authorised representative must have a notarially certified power of attorney. The power of attorney must be enclosed with the declaration or submitted later within the disclaimer period.
Section 1946
Date for acceptance or disclaimer
The heir may accept or disclaim the inheritance as soon as the devolution of the inheritance has occurred.
Section 1947
Condition and stipulation as to time
The acceptance and the disclaimer may not be made subject to a condition or a stipulation as to time.
Section 1948
More than one ground of entitlement
(1) A person who is entitled to inherit by disposition mortis causa may, if he would be entitled as an heir on intestacy without the disposition, disclaim the inheritance as an appointed heir and accept it as an heir on intestacy.
(2) A person who is entitled as heir by will and by contract of inheritance may accept the inheritance by reason of the one ground of entitlement and disclaim it for the other ground.
Section 1949
Mistake as to the ground of entitlement
(1) Acceptance is deemed not to have been made if the heir was mistaken as to the ground of entitlement.
(2) In case of doubt, the disclaimer extends to all grounds of entitlement that are known to the heir at the time of the declaration.
Section 1950
Partial acceptance; partial disclaimer
The acceptance and the disclaimer may not be limited to part of the inheritance. The acceptance or disclaimer of a part is ineffective.
Section 1951
More than one share of the inheritance
(1) A person who is entitled to more than one share of the inheritance may, if the entitlement is based on more than one ground, accept one share of the inheritance and disclaim the other.
(2) Where the entitlement is based on the same ground, the acceptance or disclaimer of one share of the inheritance also applies to the other, even if the other devolves only later. The entitlement is based on the same ground even if it is directed in more than one will or by contract in more than one contract of inheritance entered into between the same persons.
(3) If the deceased leaves an heir more than one share of the inheritance, he may permit the heir by disposition mortis causa to accept one share of the inheritance and disclaim the other.
Section 1952
Inheritability of the right of disclaimer
(1) The right of the heir to disclaim the inheritance is inheritable.
(2) If the heir dies before the expiry of the period for disclaimer, the period does not end before the expiry of the period for disclaimer laid down for the inheritance of the heir.
(3) Of more than one heir of the heir, each may disclaim the part of the inheritance corresponding to his share of the inheritance.
Section 1953
Effect of disclaimer
(1) If the inheritance is disclaimed, it is deemed that the inheritance did not devolve on those disclaiming.
(2) The inheritance devolves on the person who would be entitled if the person disclaiming had not been alive at the time of the devolution of the inheritance; the devolution is deemed to have taken place simultaneously with the devolution of the inheritance.
(3) The probate court should notify the disclaimer to the person on whom the inheritance has devolved as a result of the disclaimer. It must permit inspection by every person who credibly establishes a legal interest.
Section 1954
Period of avoidance
(1) If the acceptance or the disclaimer may be avoided, the avoidance may be effected only within six weeks.
(2) In the case of avoidance for duress, the period begins on the date on which the position of constraint ceases, and in the other cases on the date on which the person entitled to avoid obtains knowledge of the ground for avoidance. The running of the period is governed by the provisions applying to limitation of sections 206, 210 and 211 with the necessary modifications.
(3) The period is six months if the deceased had his last residence only abroad or if the heir is resident abroad at the beginning of the period.
(4) The avoidance is excluded if thirty years have passed since the acceptance or the disclaimer.
Section 1955
Form of avoidance
The avoidance of the acceptance or the disclaimer is made by declaration to the probate court. The declaration is governed by the provisions of section 1945.
Section 1956
Avoidance of failure to disclaim in good time
Failure to disclaim in good time may be avoided in the same way as acceptance.
Section 1957
Effect of avoidance
(1) The avoidance of the acceptance is deemed to be a disclaimer; the avoidance of the disclaimer is deemed to be an acceptance.
(2) The probate court should notify the avoidance of the disclaimer to the person on whom the inheritance devolved as a result of the disclaimer. The provision of section 1953 (3) sentence 2 applies.
Section 1958
Judicial assertion of claims against the heir
Before the acceptance of the inheritance, a claim directed against the estate may not be judicially asserted against the heir.
Section 1959
Management before the disclaimer
(1) If the heir carries out transactions relating to the inheritance before the disclaimer, he has the rights and duties towards the person who becomes an heir of an agent without specific authorisation.
(2) Where the heir disposes of an object of the estate before the disclaimer, the effectiveness of the disposal is not affected by the disclaimer if it was not possible to postpone the disposal without detriment to the estate.
(3) A legal transaction that must be entered into with the heir as the heir remains effective even after the disclaimer if it is entered into before the disclaimer with the person disclaiming.
Section 1960
Securing the estate; curator of the estate
(1) Until the inheritance is accepted, the probate court is to ensure that the estate is secured, to the extent that this is necessary. The same applies if the heir is unknown or if it is uncertain whether he has accepted the inheritance.
(2) The probate court may, in particular, order the attachment of seals, the deposit of money, securities and valuables and the drawing up of an estate inventory, and it may appoint a curator for the person who becomes heir (curator of the estate).
(3) The provision of section 1958 does not apply to the curator.
Section 1961
Curatorship of the estate on application
In the cases of section 1960 (1), the probate court is to appoint a curator of the estate if the appointment is applied for by the person entitled for the purpose of judicially asserting a claim that is directed against the estate.
Section 1962
Jurisdiction of the probate court
For the curatorship of the estate, the probate court takes the place of the family court or custodianship court.
Section 1963
Maintenance for the mother-to-be of an heir
Where at the time of the devolution of the inheritance the birth of an heir is to be expected, the mother-to-be, if she is unable to maintain herself, may claim appropriate maintenance from the estate until the birth or, if other persons are also entitled as heirs, from the share of the inheritance of the child. When the share of the inheritance is calculated, it is to be assumed that only one child will be born.
Section 1964
Presumption that the treasury is heir
(1) If the heir is not determined within a period appropriate to the circumstances, the probate court must determine that there is no existing heir other than the treasury.
(2) The determination gives rise to the presumption that the treasury is the heir on intestacy.
Section 1965
Public invitation to notify the rights of succession
(1) The determination must be preceded by a public invitation to notify the rights of succession, laying down a period for notification; the nature of the invitation and the length of the notification period are determined under the principles governing public notice procedure. The invitation may be omitted if the costs are disproportionately high with regard to the amount of the estate.
(2) A right of succession is not taken into account if it is proved to the probate court within three months after the expiry of the notification period that the right of succession exists or that it has been asserted against the treasury in a legal action. If there has been no public invitation, the three-month period begins when the judicial invitation to prove the right of succession or the filing of the claim is made.
Section 1966
Legal position of the treasury before determination
A right may be asserted by the treasury as heir on intestacy and against the treasury as heir on intestacy only after the probate court has determined that no other heir exists.
Title 2
Liability of the heir for the obligations of the estate
Subtitle 1
Obligations of the estate
Section 1967
Liability of heir, obligations of the estate
(1) The heir is liable for the obligations of the estate.
(2) The obligations of the estate include, in addition to the debts of the deceased, the obligations borne by the heirs as such, in particular the obligations arising from rights to a compulsory portion, legacies and testamentary burdens.
Section 1968
Costs of funeral
The heir bears the costs of the funeral of the deceased.
Section 1969
Maintenance for thirty days
(1) The heir has a duty in the first thirty days after the occurrence of the devolution of the inheritance to grant maintenance to family members of the deceased, if they belong to the household of the deceased and have been receiving maintenance from him at the time of his death, to the same extent as the deceased did and to permit them to use the home and the household objects. The deceased may by testamentary disposition make different arrangements.
(2) The provisions on legacies apply with the necessary modifications.
Subtitle 2
Public notice to the creditors of the estate
Section 1970
Notification of the claims
The creditors of the estate may be requested by way of public notice procedure to notify their claims.
Section 1971
Creditors not affected
Pledgees and creditors who are equivalent to pledgees in insolvency proceedings, and creditors who on execution of judgment against the immovable property have a right to satisfaction from this property are, insofar as it is a question of satisfaction from the objects subject to their claims, not affected by the public notice procedure. The same applies to creditors whose claims are secured by a priority notice or who have a right of separation of assets in the insolvency proceedings, with regard to the objects subject to their rights.
Section 1972
Rights not affected
Rights to a compulsory portion, legacies and testamentary burdens are not affected by the public notice, notwithstanding the provision in section 2060 no. 1.
Section 1973
Exclusion of creditors of the estate
(1) The heir may refuse the satisfaction of a creditor of the estate excluded in the public notice procedure to the extent that the estate is completely exhausted in the satisfaction of the creditors who are not excluded. However, the heir must satisfy the excluded creditor before the obligations arising from rights to compulsory portions, legacies and testamentary burdens unless the creditor asserts his claim only after the discharge of these obligations.
(2) The heir must return a surplus for the purpose of satisfying the creditor by way of execution of judgment under the provisions on the return of unjust enrichment. He may prevent the return of the objects of the estate still in existence by paying the value. The final and absolute judgment ordering the heir to satisfy an excluded creditor has the same effect with regard to another creditor as satisfaction.
Section 1974
Defence of withheld information
(1) A creditor of the estate who asserts his claim to the heir later than five years after the devolution of the inheritance is on the same footing as an excluded creditor, unless the claim became known to the heir before the expiry of the five years or was notified in the public notice procedure. If the deceased is declared to be dead or if his date of death is determined under the provisions of the Missing Persons Act [Verschollenheitsgesetz], the period does not begin before the order containing the declaration of death or the determination of the time of death becomes final and absolute.
(2) The obligation imposed on the heir under section 1973 (1) sentence 2 arises in the interrelationship of obligations under rights to a compulsory portion, legacies and testamentary burdens only to the extent that the creditor would have priority in the case of estate insolvency proceedings.
(3) To the extent that a creditor is, under section 1971, not affected by the public notice, the provisions of subsection (1) do not apply to him.
Subtitle 3
Restriction of the liability of the heir
Section 1975
Administration of estate; estate insolvency
The liability of the heir for the obligations of the estate is restricted to the estate if curatorship is ordered in order to satisfy the creditors of the estate (administration of the estate) or estate insolvency proceedings are instituted.
Section 1976
Effect on legal relationships extinguished by merger
If administration of the estate has been ordered or estate insolvency proceedings have been instituted, the legal relationships extinguished on the devolution of the inheritance by merger of right and obligation or of right and encumbrance are deemed not to be extinguished.
Section 1977
Effect on a set-off
(1) If a creditor of the estate, before administration of the estate was ordered or before estate insolvency proceedings were instituted, set off without the approval of the heir his claim against a claim of the heir that does not form part of the estate, then after the administration of the estate is ordered or estate insolvency proceedings are instituted, the set-off is to be deemed not to have taken place.
(2) The same applies if a creditor who is not a creditor of the estate has set off his claim on the heir against a claim belonging to the estate.
Section 1978
Responsibility of the heir for previous administration, reimbursement of expenses
(1) If administration of the estate has been ordered or estate insolvency proceedings have been instituted, the heir is as responsible to the creditors of the estate for the previous management of the estate as if he had had to manage the estate for them as their agent from the date of acceptance of the inheritance on. The transactions relating to the inheritance carried out by the heir before the acceptance of the inheritance are governed by the provisions on agency without specific authorisation, with the necessary modifications.
(2) The claims of the creditors of the estate under subsection (1) are deemed to belong to the estate.
(3) Expenses are to be reimbursed to the heir from the estate to the extent that he could require reimbursement under the provisions on mandate or on agency without specific authorisation.
Section 1979
Discharge of obligations of the estate
The discharge of an obligation of the estate by the heir must be treated by the creditors of the estate as having been made for the account of the estate if the heir in the circumstances was entitled to assume that the estate was sufficient to discharge all obligations of the estate.
Section 1980
Application for institution of estate insolvency proceedings
(1) If the heir has obtained knowledge of the insolvency or overindebtedness of the estate, he must without undue delay apply for the institution of estate insolvency proceedings. If he infringes this duty, he is liable to the creditors for the damage resulting from this. In assessing the adequacy of the estate, the liabilities in the form of legacies and testamentary burdens are not taken into account.
(2) Ignorance arising from negligence is equivalent to knowledge of insolvency or overindebtedness. It is deemed in particular to be negligence if the heir does not apply for public notice for the creditors of the estate although he has reason to assume that there are unknown obligations of the estate; public notice is not necessary if the costs of the proceedings are disproportionately high in relation to the amount of the estate.
Section 1981
Order of administration of the estate
(1) The administration of the estate must be ordered by the probate court if the heir applies for the order.
(2) The administration of the estate must be ordered on the application of a creditor of the estate if there is reason to assume that the satisfaction of the creditors of the estate from the estate is endangered by the conduct or the financial situation of the heir. The application may no longer be made if two years have passed since the acceptance of the inheritance.
(3) The provision of section 1785 does not apply.
Section 1982
Refusal to order administration of the estate for insufficiency of assets
There may be a refusal to order administration of the estate if the assets are insufficient to pay the costs.
Section 1983
Public notice
The probate court must publish the order of administration of the estate in the newspaper chosen for its notices.
Section 1984
Effect of the order
(1) On the order of administration of the estate, the heir loses the authority to manage the estate and dispose of it. The provisions of sections 81 and 82 of the Insolvency Code [Insolvenzordnung] apply with the necessary modifications. A claim directed against the estate may be asserted only against the administrator of the estate.
(2) Execution of judgment against the estate and attachment of the estate in favour of a creditor who is not a creditor of the estate are excluded.
Section 1985
Duties and liability of the administrator of the estate
(1) The administrator must manage the estate and discharge the obligations of the estate from the estate.
(2) The administrator is also responsible to the creditors of the estate for the management of the estate. The provisions of section 1978 (2) and sections 1979 and 1980 apply with the necessary modifications.
Section 1986
Delivery of the estate
(1) The administrator may pay out the estate to the heir only when the known obligations of the estate have been discharged.
(2) Where the discharge of a liability is not possible at the time, or where a liability is disputed, the estate may be paid out only if security is provided to the creditor. The provision of security is not necessary for a conditional claim if the possibility of the condition being fulfilled is so remote that the claim does not have a current asset value.
Section 1987
Payment of the administrator of the estate
The administrator may request appropriate payment for carrying out his office.
Section 1988
End and cancellation of administration of the estate
(1) The administration of the estate ends on the institution of the estate insolvency proceedings.
(2) The administration of the estate may be cancelled if it is shown that the assets are insufficient to pay the costs.
Section 1989
Defence by the heir of exhaustion of assets
If the estate insolvency proceedings are ended by distribution of the assets or by an insolvency plan, the liability of the heir is governed by the provision of section 1973 with the necessary modifications.
Section 1990
Defence by the heir of insufficiency of assets
(1) If the order of administration of the estate or the institution of estate insolvency proceedings is not appropriate by reason of lack of sufficient assets to pay the costs, or if for this reason the administration of the estate is cancelled or the insolvency proceedings are suspended, the heir may refuse to satisfy a creditor of the estate to the extent that the estate is insufficient. In this case, the heir is obliged to deliver the estate for the purpose of satisfying the creditor by way of execution of judgment.
(2) The right of the heir is not excluded by the fact that the creditor, after the date of the devolution of the inheritance, by way of execution of judgment or enforcement of seizure or arrest, has obtained a pledge or a mortgage or, by way of interim injunction, a priority notice.
Section 1991
Consequences of defence of insufficiency of assets
(1) If the heir exercises the right to which he is entitled under section 1990, his responsibility and the reimbursement of his expenses are governed by sections 1978 and 1979.
(2) The legal relationships extinguished as a result of the devolution of the inheritance by merger of right and obligation or of right and encumbrance are deemed in the relationship between the creditor and the heir not to be extinguished.
(3) The final and absolute judgment ordering the heir to satisfy a creditor has the same effect with regard to another creditor as satisfaction.
(4) The liabilities arising from rights to a compulsory share, legacies and testamentary burdens must be discharged by the heir in the same way as they would be satisfied in the case of insolvency proceedings.
Section 1992
Overindebtedness as a result of legacies and testamentary burdens
If the overindebtedness of the estate results from legacies and testamentary burdens, the heir, even if the conditions of section 1990 are not satisfied, is entitled to effect the discharge of these liabilities under the provisions of sections 1990 and 1991. He may prevent the return of the objects of the estate still in existence by paying the value.
Subtitle 4
Filing of an inventory, unlimited liability of the heir
Section 1993
Filing of an inventory
The heir is entitled to file a list of the estate (inventory) at the probate court (filing of an inventory).
Section 1994
Inventory period
(1) On the application of a creditor of the estate, the probate court must fix a period (inventory period) for the heir to file the inventory. After the expiry of the period, the heir has unlimited liability for the obligations of the estate, unless the inventory is filed before this.
(2) The applicant must credibly establish his claim. The effectiveness of the fixing of the period is unaffected if the claim does not exist.
Section 1995
Length of the period
(1) The inventory period should be at least one month and at most three months. It begins on the service of the order setting the period.
(2) If the period is fixed before the acceptance of the inheritance, it begins only on the acceptance of the inheritance.
(3) On the application of the heir, the probate court may, at its discretion, extend the period.
Section 1996
Fixing a new period
(1) If the heir has been prevented without his own fault from filing the inventory in good time, from applying for the extension of the inventory period where this is justified in the circumstances or from observing the two-week period specified in subsection (2), on his application the probate court must fix a new inventory period for him.
(2) The application must be made within two weeks after the removal of the obstacle and at the latest before the expiry of one year after the end of the period first fixed.
(3) Before the decision, the creditor of the estate on whose application the first period was laid down should be heard if appropriate.
Section 1997
Suspension of the expiry of the period
The running of the inventory period and of the period of two weeks fixed in section 1996 (2) are governed by the provisions applying to limitation in section210 with the necessary modifications.
Section 1998
Death of the heir before expiry of the period
If the heir dies before the expiry of the inventory period or of the period of two weeks fixed in section 1996 (2), the period does not end before the expiry of the period laid down for disclaimer of the inheritance of the heir.
Section 1999
Notice to the court
If the heir is subject to parental custody or to guardianship, the probate court should notify the family court of the fixing of the inventory period. If the matter relating to the estate falls under the tasks of a custodian, the family court is replaced by the custodianship court.
Section 2000
Ineffectiveness of the fixing of the period
The fixing of an inventory period becomes ineffective if administration of the estate is ordered or estate insolvency proceedings are instituted. During the period of the administration of the estate or of the estate insolvency proceedings, an inventory period may not be fixed. If the estate insolvency proceedings are terminated by distribution of the insolvency estate or by an insolvency plan, the filing of an inventory is not necessary in order to avoid unlimited liability.
Section 2001
Contents of the inventory
(1) The inventory should state in full the objects of the estate that are in existence at the date of the devolution of the inheritance and the obligations of the estate.
(2) In addition, the inventory should contain a description of the objects of the estate, to the extent that such is necessary to assess the value, and a statement of the value.
Section 2002
Preparation of the inventory by the heir
The heir must call in a competent authority or a competent official or notary for the preparation of the inventory.
Section 2003
Official preparation of the inventory
(1) On the application of the heir, the official preparation of the inventory is to be carried out by a notary appointed by the probate court. If, in accordance with Land law, the tasks of the probate courts are assigned to the notaries, the competent notary must prepare the inventory him/herself. The filing of the application preserves the inventory period.
(2) The heir is obliged to give the information that is necessary for the preparation of the inventory.
(3) The inventory is to be filed at the probate court by the notary.
Section 2004
Reference to an existing inventory
Where an inventory complying with the provisions of sections 2002 and 2003 is already at the probate court, it is sufficient if the heir, before the expiry of the inventory period, declares to the probate court that the inventory is to be deemed to have been filed by himself.
Section 2005
Unlimited liability of the heir if the inventory is incorrect
(1) If the heir intentionally causes a substantial incompleteness of the statement of objects of the estate contained in the inventory, or if, with the intention to disadvantage the creditors of the estate, causes a non-existent obligation of the estate to be included, he has unlimited liability for the obligations of the estate. The same applies if, in the case of section 2003, he refuses to give the information or intentionally delays to a substantial degree in giving it.
(2) If the statement of the objects of the estate is incomplete but this is not a case of subsection (1), a new inventory period may be fixed for the heir to complete the statement.
Section 2006
Declaration in lieu of an oath
(1) At the request of a creditor of the estate, the heir must make a declaration in lieu of an oath, to be recorded by the probate court, that to the best of his knowledge he has stated the objects of the estate as fully as he can.
(2) Before filing the declaration in lieu of an oath, the heir may complete the inventory.
(3) If the heir refuses to make the declaration in lieu of an oath, he has unlimited liability to the creditor who made the application. The same applies if he appears neither at the hearing nor at a new hearing fixed at the application of the creditor, unless there is a reason that sufficiently justifies his non-appearance at this hearing.
(4) The same creditor or another creditor may request the declaration in lieu of an oath to be made again only if there is reason to assume that the heir learnt of the existence of further objects of the estate after making the statutory declaration.
Section 2007
Liability in the case of more than one share of the inheritance
If an heir is entitled to more than one share of the inheritance, his liability for the obligations of the estate with regard to each of the shares of the inheritance is determined in the same way as if the shares in the inheritance belonged to different persons. In the cases of accrual and of section 1935, this applies only if the shares of the inheritance are differently encumbered.
Section 2008
Inventory for an inheritance that is part of marital property
(1) Where a spouse living under the regime of community of property is an heir and where the inheritance is part of the marital property, the fixing of the inventory period is effective only if it is also made towards the other spouse, if the other spouse manages the marital property alone or together with the first spouse. As long as the period has not expired with regard to the second spouse, it does not end with regard to the spouse who is the heir either. The filing of the inventory by the other spouse also benefits the spouse who is an heir.
(2) The provisions of subsection (1) also apply after the end of the community of property.
Section 2009
Effect of filing of inventory
If the inventory is filed in good time, it is presumed in the relationship between the heir and the creditors of the estate that at the time of the devolution of the inheritance no further objects of the estate apart from those stated were in existence.
Section 2010
Inspection of the inventory
The probate court must permit inspection of the inventory by every person who credibly establishes a legal interest.
Section 2011
No inventory period for the treasury as heir
No inventory period may be fixed for the treasury as heir on intestacy. The treasury is obliged towards the creditors of the estate to supply information on the amount of the estate.
Section 2012
No inventory period for the curator and administrator of the estate
(1) No inventory period may be fixed for a curator of the estate appointed under sections 1960 and 1961. The treasury is obliged towards the creditors of the estate to supply information on the amount of the estate. The curator may not waive the limitation of the liability of the heir.
(2) These provisions also apply to the administrator of the estate.
Section 2013
Consequences of the unlimited liability of the heir
(1) If the heir has unlimited liability for the obligations of the estate, the provisions of sections 1973 to 1975, 1977 to 1980 and 1989 to 1992 do not apply; the heir is not entitled to apply for an order of administration of the estate. However, the heir may rely on a limitation of liability occurring under section 1973 or under section 1974 if the case of section 1994 (1) sentence 2 or of section 2005 (1) later arises.
(2) The provisions of sections 1977 to 1980 and the right of the heir to apply for an order of administration of the estate are not excluded by the fact that the heir has unlimited liability towards individual creditors of the estate.
Subtitle 5
Suspensive defences
Section 2014
Defence within three months
The heir is entitled to refuse to discharge an obligation of the estate before the end of the first three months after the acceptance of the inheritance, but not past the date when the inventory is filed.
Section 2015
Defence of the public notice procedure
(1) If the heir has made the application for the initiation of the public notice procedure for the creditors of the estate within one year after the acceptance of the inheritance and if the application has been admitted, the heir is entitled to refuse to discharge an obligation of the estate before the end of the public notice procedure.
(2) (repealed)
(3) If the exclusory order is passed or the application for the exclusory order to be passed is rejected, the public notice procedure is not to be deemed as terminated until the order has gained legal force.
Section 2016
Exclusion of defences in the case of unlimited liability of the heir
(1) The provisions of sections 2014 and 2015 do not apply if the heir has unlimited liability.
(2) The same applies to the extent that a creditor under section 1971 is not affected by the public notice to the creditors of the estate, subject to the proviso that a right acquired only after the date of the devolution of the inheritance by way of execution of judgment or enforcement of seizure or arrest and a priority notice obtained only after this date by way of interim injunction are disregarded.
Section 2017
Beginning of the period of time in the case of curatorship of the estate
If, before the inheritance is accepted, a curator is appointed to manage the estate, the periods laid down in section 2014 and 2015 (1) commence on the date of the appointment.
Title 3
Claim to inheritance
Section 2018
Duty of surrender of the possessor of the inheritance
The heir may request every person who, on the basis of a right of succession that he does not really have, has acquired something from the inheritance (possessor of the inheritance) to surrender the item or items acquired.
Section 2019
Direct substitution
(1) Items that the possessor of the inheritance acquires by legal transaction with means from the inheritance are also deemed to have been obtained from the inheritance.
(2) Only when the debtor obtains knowledge that a claim acquired in such a way is part of the inheritance must the debtor allow this to be asserted against him; the provisions of sections 406 to 408 apply with the necessary modifications.
Section 2020
Emoluments and fruits
The possessor of the inheritance must surrender to the heir the emoluments taken: the duty of surrender also relates to fruits whose ownership he has acquired.
Section 2021
Duty of surrender under principles of unjust enrichment
To the extent that the possessor of the inheritance is not able to surrender the emoluments, his obligation is governed by the provisions on the return of unjust enrichment.
Section 2022
Reimbursement of outlays and expenses
(1) The possessor of the inheritance is obliged to surrender the things belonging to the inheritance in return for reimbursement of all outlays only to the extent that the outlays are not covered by set-off against the enrichment to be returned under section 2021. The provisions of sections 1000 to 1003 applying to the claim to ownership apply.
(2) The outlays also include the expenses that the possessor of the inheritance incurs in paying charges on the inheritance or in discharging obligations of the estate.
(3) To the extent that the heir must make reimbursement to a greater extent for expenses that were not incurred in relation to individual things, in particular for the expenses set out in subsection (2), under the general provisions, this does not affect the claim of the possessor of the inheritance.
Section 2023
Liability after litigation is pending and for emoluments and outlays
(1) If the possessor of the inheritance is to surrender things belonging to the inheritance, then from the date when the matter becomes pending on the claim of the heir to damages for deterioration, destruction or impossibility of surrender for another reason is governed by the provisions that apply to the relationship between the owner and the possessor from the date when the claim to ownership became pending.
(2) The same applies to the claim of the heir for surrender of or payment for emoluments and of the claim of the possessor of the inheritance to the reimbursement of outlays.
Section 2024
Liability with knowledge
If the possessor of the inheritance is not in good faith at the beginning of his possession of the inheritance, he is liable in the same way as if the claim of the heir had at this time become pending. If the possessor of the inheritance later discovers that he is not an heir, he is liable in the same way from the date when he obtained the knowledge. This does not affect a more extensive liability for default.
Section 2025
Liability in the case of tort
If the possessor of the inheritance has obtained an object of the inheritance through a criminal offence or has obtained a thing that is part of the inheritance through unlawful interference with possession, he is liable under the provisions on damages for torts. A possessor of the inheritance in good faith, however, is liable for unlawful interference with possession under these provisions only if the heir has already actually taken possession of the thing.
Section 2026
No reliance on acquisition by prescription
The possessor of the inheritance, as long as the claim to the inheritance is not statute-barred, may not rely as against the heir on the acquisition by prescription of a thing that he has in his possession as belonging to the inheritance.
Section 2027
Duty of information of the possessor of the inheritance
(1) The possessor of the inheritance is obliged to give the heir information on the amount of the inheritance and on the whereabouts of the objects of the inheritance.
(2) A person who, without being the possessor of the inheritance, takes possession of a thing from the estate before the heir has actually taken possession has the same obligation.
Section 2028
Duty of information of occupant of house
(1) A person who, at the time of the devolution of the inheritance, lived in the same household as the deceased, is obliged to inform the heir on request what transactions relating to the inheritance he conducted and what he knows of the whereabouts of the objects of the inheritance.
(2) If there is reason to assume that the information was not given with the necessary care, the person obliged must, on the request of the heir, declare in lieu of an oath, to be recorded in writing, that he made his statements, to the best of his knowledge, as fully as he was able.
(3) The provisions of section 259 (3) and section 261 apply.
Section 2029
Liability in the case of individual claims by the heir
The liability of the possessor of the inheritance with regard to the claims to which the heir is entitled with respect to the individual objects of the inheritance is also governed by the provisions on the claim to the inheritance.
Section 2030
Legal position of the acquirer of the inheritance
A person who acquires the inheritance by contract from a possessor of the inheritance is, in relation to the heir, equivalent to a possessor of the inheritance.
Section 2031
Claim of person declared dead for surrender
(1) If a person who is declared dead or the time of whose death is established under the provisions of the Missing Persons Act [Verschollenheitsgesetz] survives the date that is deemed to be the date of his death, the person may require the return of his property under the provisions governing the claim to inheritance. As long as the person is still alive, his claim does not become statute-barred before the expiry of a one-year period after the date on which he obtained knowledge of the declaration of death or of the determination of the time of death.
(2) The same applies if the death of a person has been wrongly assumed without a declaration of death or determination of the time of death.
Title 4
More than one heir
Subtitle 1
Legal relationship of the heirs between themselves
Section 2032
Community of heirs
(1) If the deceased leaves more than one heir, the estate becomes the joint property of the heirs.
(2) Until the partitioning, the provisions of section 2033 to 2041 apply.
Section 2033
Right of disposition of the co-heir
(1) Every co-heir may dispose of his share in the estate. The contract by which a co-heir disposes of his share must be notarially recorded.
(2) A co-heir may not dispose of his share in the individual objects of the estate.
Section 2034
Right of preemption as against seller
(1) If a co-heir sells his share to a third party, the other co-heirs have a right of preemption.
(2) The period for exercising the right of preemption is two months. The right of preemption is inheritable.
Section 2035
Right of preemption as against buyer
(1) If the share sold has been transferred to the buyer, the co-heirs may exercise against the buyer the right of preemption to which they are entitled under section 2034 against the seller. The right of preemption as against the seller expires upon the transfer of the share.
(2) The seller must inform the co-heirs of the transfer without undue delay.
Section 2036
Liability of buyer of share of the inheritance
Upon the transfer of the share to the co-heirs, the buyer is released from liability for the obligations of the estate. However, his liability continues to the extent that he is responsible to the creditors of the estate under sections 1978 to 1980; the provisions of sections 1990 and 1991 apply with the necessary modifications.
Section 2037
Resale of the share of the inheritance
If the buyer transfers the share to another person, the provisions of sections 2033, 2035 and 2036 apply with the necessary modifications.
Section 2038
Joint management of the estate
(1) The heirs are jointly entitled to the management of the estate. Every co-heir is obliged to the others to cooperate in measures that are necessary for due management; the measures necessary for preservation may be undertaken by each co-heir without the cooperation of the others.
(2) The provisions of sections 743, 745, 746 and 748 apply. The division of the fruits does not take place until the partitioning. If the partitioning is excluded for more than one year, each co-heir may request the division of the net income at the end of every year.
Section 2039
Estate claims
If a claim is part of the estate, the person obliged may perform only to all heirs jointly, and each co-heir may claim only performance to all heirs. Every co-heir may require that the person obliged deposit the thing to be surrendered for all heirs or, if it is not suitable for deposit, delivers it to a custodian to be appointed by the court.
Section 2040
Disposal of objects of the estate, set-off
(1) The heirs may dispose of an object of the estate only jointly.
(2) If a claim is part of the estate, the debtor may not set off against it a claim he has against an individual co-heir.
Section 2041
Direct substitution
Whatever is acquired under a right that is part of the estate or as compensation for the destruction, damage or removal of an object of the estate or by a legal transaction relating to the estate is part of the estate. A claim acquired by such a legal transaction is governed by the provision of section 2019 (2).
Section 2042
Partitioning
(1) Every co-heir may at any time request the partitioning of the estate, unless sections 2043 to 2045 lead to a different conclusion.
(2) The provisions of section 749 (2) and (3) and of sections 750 to 758 apply.
Section 2043
Postponement of partitioning
(1) To the extent that the shares of the inheritance are still undetermined because the birth of a co-heir is expected, the partitioning is excluded until the indeterminacy is removed.
(2) The same applies to the extent that the shares of the inheritance are still undetermined because the decision on an application for adoption, on the cancellation of the adoption relationship or on the recognition of a foundation created by the deceased as having legal personality is still outstanding.
Section 2044
Exclusion of partitioning
(1) The deceased may by testamentary disposition exclude the partitioning with regard to the estate or individual objects of the estate or make it dependent on a notice period. The provisions of section 749 (2) and (3), and sections 750 and 751 and of section 1010 (1) apply with the necessary modifications.
(2) The testamentary disposition ceases to be effective if thirty years have passed since the date of the devolution of the inheritance. However, the testator may provide that the disposition is to remain effective until the occurrence of a particular event relating to the person of a co-heir or, if he provides for subsequent succession or a legacy, until the occurrence of the subsequent succession or until the devolution of the legacy. If the co-heir in relation to whom the event is to occur is a legal person, the thirty-year period applies.
Section 2045
Postponement of partitioning
Every co-heir may require that the partitioning be postponed until the termination of the public notice procedure admissible under section 1970 or until the expiry of the notification period laid down in section 2061. Where the application for the initiation of the public notice procedure has not yet been filed or the public notice under section 2061 has not yet been issued, the postponement may be requested only if the application is made or the notice is issued without undue delay.
Section 2046
Discharge of obligations of the estate
(1) The obligations of the estate are first to be discharged from the estate. If an obligation of the estate is not yet due or if it is disputed, the amount necessary to discharge the obligation must be kept back.
(2) If an obligation of the estate encumbers only a few co-heirs, they may request the discharge to be made only from the part of the estate that accrues to them in the partitioning.
(3) For the purpose of discharge, the estate, so far as necessary, is to be converted into money.
Section 2047
Distribution of the surplus
(1) The surplus remaining after the discharge of the obligations of the estate is due to the heirs in the proportion of their shares of the inheritance.
(2) Documents relating to the personal circumstances of the deceased or of his family or to the whole estate remain joint property.
Section 2048
Directions by the deceased for partitioning
The testator may by testamentary disposition give directions for the partitioning. He may in particular direct that the partitioning should be carried out by a third party exercising equitable discretion. The decision made by the third party on the basis of the direction is not binding on the heirs if it is evidently inequitable; the decision is made by judicial decision of a court in this case.
Section 2049
Taking over of a farm
(1) If the deceased directed that one of the co-heirs is to have the right to take over a farm that is part of the estate, then in case of doubt it is to be assumed that the farm is to be reported at its income value.
(2) The income value is based on the net income that the farm, in accordance with its economic purpose to date, can give in the long term if properly managed.
Section 2050
Duty to adjust advancements for descendants as heirs on intestacy
(1) Descendants who inherit as heirs on intestacy are obliged to have whatever they received from the deceased during his lifetime as an advancement adjusted in the partitioning between the heirs, unless the deceased directed otherwise when giving the advancement.
(2) Contributions that were given in order to be used as income, and expenses for training for an occupation, are to be adjusted to the extent that they exceeded the degree appropriate for the financial circumstances of the deceased.
(3) Other gifts inter vivos must be adjusted if the deceased directed adjustment when he made the gift.
Section 2051
Duty to adjust advancements if a descendant does not inherit
(1) If a descendant who would be obliged to adjust advancements as an heir ceases to be an heir before or after the devolution of the inheritance, the gifts made to him must be adjusted by the descendant who takes his place.
(2) If the deceased appointed a substitute heir for the heir who ceases to be an heir, then in case of doubt it is to be assumed that the substitute heir should not receive more than the descendant would receive, taking into account the duty to adjust advancements.
Section 2052
Duty to adjust advancements for descendants as heirs by will
If the deceased has appointed the descendants as heirs to what they would receive as heirs on intestacy, or if he has defined their shares of the inheritance in such a way that they have the same proportion to each other as the shares of the inheritance on an intestacy, then in case of doubt it is to be assumed that the defendants are to be obliged to adjust their advancements under sections 2050 and 2051.
Section 2053
Gift to more remote or adopted descendant
(1) A gift that was received from the deceased by a more remote descendant before the closer descendant who excluded him from the succession ceased to be an heir, or by a descendant who took the place of a descendant as a substitute heir, is not to be adjusted unless the deceased directed adjustment when he made the gift.
(2) The same applies if a descendant received a gift from the deceased before attaining the legal position of a descendant.
Section 2054
Gift from the marital property
(1) Half of a gift made from marital property under the community of property regime is deemed to have been made by each of the spouses. However, if the gift is made to one descendant who is descended from only one of the spouses, or if one of the spouses must reimburse the marital property for the gift, it is deemed to have been made by that spouse.
(2) These provisions apply with the necessary modifications to a gift made from marital property under continued community of property.
Section 2055
Carrying out the adjustment
(1) When the inheritance is partitioned, the value of the gift that each co-heir has to have adjusted is counted towards the share of the inheritance of that co-heir. The value of all the gifts that are to be adjusted is added to the estate to the extent that the estate is due to the co-heirs among whom the adjustment takes place.
(2) The value is assessed according to the time at which the gift was made.
Section 2056
Excess gifts
If a co-heir has received more in the gift than he would be entitled to on partitioning, he is not obliged to pay out the surplus. In such a case, the estate is divided between the other heirs in such a way that the value of the gift and the share of the inheritance of the co-heir are excluded from the adjustment.
Section 2057
Duty of information
Every co-heir is obliged, on request, to give the other co-heirs information on the gifts that he is to have adjusted under sections 2050 to 2053. The provisions of sections 260 and 261 on the obligation to make a declaration in lieu of an oath apply with the necessary modifications.
Section 2057a
Duty to adjust advancements in the case of special payments by one descendant
(1) A descendant who, as a result of work over a long period in the household, occupation or business of the deceased, of substantial financial contributions or in another way has to a particular degree contributed to the preservation or increase of the property of the deceased, may, in the partitioning, demand adjustment between the descendants who inherit as heirs on intestacy together with him; section 2052 applies with the necessary modifications. This also applies to a descendant who cared for the deceased for a long period.
(2) An adjustment may not be demanded if appropriate payment was made or agreed for the work, or to the extent that the descendant, on account of his work, has a claim on another legal basis. It does not conflict with the duty to adjust advancements if the work was done under sections 1619 and 1620.
(3) The adjustment amount is to be assessed in such a way as is equitable with regard to the duration and scope of the work and to the value of the estate.
(4) In the partitioning, the adjustment amount is added to the share of the inheritance of the co-heir entitled to adjustment. All the adjustment amounts are deducted from the value of the estate, to the extent that this is due to the co-heirs among whom the adjustment takes place.
Subtitle 2
Legal relationship between the heirs and the creditors of the estate
Section 2058
Joint and several liability
The heirs are liable for the joint obligations of the estate as joint and several debtors.
Section 2059
Liability until division
(1) Until the division of the estate, each co-heir may refuse the discharge of the obligations of the estate from the property that he has apart from his share in the estate. If he has unlimited liability for an obligation of the estate, he does not have this right with regard to the part of the obligation that corresponds to his share of the inheritance.
(2) The right of the creditors of the estate to demand satisfaction from all the co-heirs from the undivided estate is unaffected.
Section 2060
Liability after division
After the division of the estate, each co-heir is liable only for the part of an obligation of the estate that corresponds to his share of the inheritance.
1. if the creditor is excluded in the public notice procedure; in this respect, the public notice also extends to the creditors set out in section 1972 and to the creditors towards whom the co-heir has unlimited liability;
2. if the creditor asserts his claim more than five years after the date determined in section 1974 (1), unless the claim became known to the co-heir before the expiry of the five-year period or was notified in the public notice procedure; the provision does not apply to the extent that the creditor under section 1971 is not affected by the public notice;
3. if estate insolvency proceedings have been instituted and have been terminated by distribution of the insolvency estate or by an insolvency plan.
Section 2061
Public notice to the creditors of the estate
(1) Every co-heir may publicly request the creditors of the estate to notify their claims within six months to him or to the probate court. If the public notice has been given, then after the division every co-heir is liable only for the part of a claim corresponding to his share of the inheritance, unless the claim was notified before the end of the period or he knows of the claim at the time of the division.
(2) The public notice must be published in the Federal Gazette [Bundesanzeiger] and by the newspaper selected for the notices of the probate court. The period begins on the last insertion. The costs are borne by the heir who issues the public notice.
Section 2062
Application for administration of the estate
The order of the administration of the estate may be applied for only jointly by the heirs; it is excluded after the estate has been partitioned.
Section 2063
Filing of an inventory, limitation of liability
(1) The filing of the inventory by a co-heir also works in favour of the other heirs, to the extent that their liability for the obligations of the estate is not unlimited.
(2) A co-heir may rely on the limitation of his liability in relation to the other heirs even if he has unlimited liability towards the other creditors of the estate.
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