Last Updated on July 1, 2021 by LawEuro
German Civil Code (BGB) German law
Division 3
Will
Title 1
General provisions
Section 2064
Made in person
The testator may make a will only in person.
Section 2065
Determination by third parties
(1) The testator may not make a testamentary disposition in such a way that another person has to determine whether it should be effective or not.
(2) The testator may not leave to another person the specification of the person who is to receive a gift and the specification of the object of the gift.
Section 2066
Heirs on intestacy of the testator
If the testator has made provision for his heirs on intestacy without more precise identification, provision is made to the persons who would be his heirs on intestacy at the time of the devolution of the inheritance in accordance with the proportions of their shares of the inheritance on intestacy. Where the gift is made subject to a condition precedent or together with the specification of a date of commencement, and where the condition is satisfied or the date occurs only after the devolution of the inheritance, then in case of doubt provision is to be seen as made to those persons who would be the heirs on intestacy if the testator had died at the time when the condition was satisfied or on the date of the commencement.
Section 2067
Relatives of the testator
If the testator has made provision for his relatives or his next of kin without more precise identification, then in case of doubt provision is to be regarded as having been made to those relatives who would be his heirs on intestacy at the time of the devolution of the inheritance, in accordance with the proportions of their shares of the inheritance on intestacy. The provision of section 2066 sentence 2 applies.
Section 2068
Children of the testator
If the testator has made provision for his children without more precise identification and if a child died before the making of the will, leaving descendants, then in case of doubt it is to be assumed that the provision has been made to the descendants to the extent that they would take the place of the child in intestate succession.
Section 2069
Descendants of the testator
If the testator has made provision for one of his descendants and if after the will is made this descendant ceases to be an heir, then in case of doubt it is to be assumed that provision is made for this descendant’s descendants to the extent that they would take his place in intestate succession.
Section 2070
Descendants of a third party
Where the testator has made provision for the descendants of a third party without more precise identification, then in case of doubt it is to be assumed that provision is not made for the descendants who have not been conceived at the time of the devolution of the inheritance or, if the gift is made subject to a condition precedent or together with the specification of a date of commencement and the condition is satisfied or the date occurs only after the devolution of the inheritance, at the time when the condition is satisfied or on the date of the commencement.
Section 2071
Group of persons
If the testator has made provision, without more precise identification, for a class of persons or for persons who have an employment or business relationship with him, then in case of doubt it is to be assumed that provision is made for those who at the time of the devolution of the inheritance belong to the class stated or are in the stated relationship.
Section 2072
The poor
If the testator has made provision, without more precise identification, for the poor, then in case of doubt it is to be assumed that provision is made to the public poor relief fund of the community in whose district he had his last residence, subject to the testamentary burden that it must distribute the gift among poor persons.
Section 2073
Ambiguous designation
If the testator has designated the person provided for in a way that applies to more than one person, and if it cannot be determined which of them was to be provided for, they are regarded as provided for in equal shares.
Section 2074
Condition precedent
Where the testator has made a testamentary gift subject to a condition precedent, then in case of doubt it is to be assumed that the gift is only to be made if the person provided for is living at the date when the condition is satisfied.
Section 2075
Condition subsequent
Where the testator has made a testamentary gift subject to the condition that the person provided for refrains from doing or continues to do something for an indefinite period, then, if the ceasing or continuing is purely at the discretion of the person provided for, in case of doubt it is to be assumed that the gift is to be dependent on the condition subsequent that the person provided for undertakes the action or refrains from it.
Section 2076
Condition for the benefit of a third party
If the condition subject to which a testamentary gift is made is intended to benefit a third party, then in case of doubt it is held to have been satisfied if the third party refuses the cooperation necessary to satisfy it.
Section 2077
Ineffectiveness of testamentary dispositions on dissolution of marriage or engagement
(1) A testamentary disposition in which the testator has made provision for his spouse is ineffective if the marriage was dissolved before the testator’s death. It is equivalent to dissolution of marriage if at the time of the death of the testator the requirements for divorce were satisfied and the testator had petitioned for divorce or consented to it. The same applies if the deceased at the time of his death was entitled to petition for the annulment of the marriage and had filed the petition.
(2) A testamentary disposition in which the testator has made provision for the person to whom he is engaged is ineffective if the engagement was dissolved before the testator’s death.
(3) The disposition is not ineffective if it is to be assumed that the testator would have made it even in such a case.
Section 2078
Avoidance for mistake or duress
(1) A testamentary disposition may be avoided to the extent that the testator was mistaken as to the contents of his declaration or had no intention whatsoever of making a declaration with these contents and it is to be assumed that if he had known the situation he would not have made the declaration.
(2) The same applies to the extent that the testator was induced to make the disposition by the mistaken assumption or expectation that a circumstance would occur or not occur, or was unlawfully induced by duress.
(3) The provision of section 122 does not apply.
Section 2079
Avoidance for omission of a person entitled to a compulsory portion
A testamentary disposition may be avoided if the testator has omitted a person entitled to a compulsory portion who is in existence at the time of the devolution of the inheritance, the existence of whom was unknown to the testator when he made the testamentary disposition or who was born or became entitled to a compulsory portion only after the making of the testamentary disposition. Avoidance is excluded to the extent that it is to be assumed that the testator would have made the disposition even if he had known the circumstances.
Section 2080
Person entitled to avoid
(1) The person who would be directly benefited by the cancellation of the testamentary disposition is entitled to avoid it.
(2) Where, in the cases of section 2078, the mistake relates only to a particular person and where this person is entitled to avoid or would be entitled to avoid if he had been alive at the time of the devolution of the inheritance, no other person is entitled to avoid.
(3) In the case of section 2079, only the person entitled to a compulsory portion is entitled to avoid.
Section 2081
Declaration of avoidance
(1) The avoidance of a testamentary disposition that appoints an heir, excludes an heir on intestacy from succession, appoints an executor or cancels a disposition of such a kind is effected by a declaration made to the probate court.
(2) The probate court should communicate the declaration of avoidance to the person who is directly benefited by the disposition avoided. It must permit inspection by every person who credibly establishes a legal interest.
(3) The provision of subsection (1) also applies to the avoidance of a testamentary disposition that does not create a right for another person, in particular to the avoidance of a testamentary burden.
Section 2082
Period of avoidance
(1) The avoidance may be made only within one year.
(2) The period begins on the date on which the person entitled to avoidance obtains knowledge of the ground of 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 avoidance is excluded if thirty years have passed since the devolution of the inheritance.
Section 2083
Defence of voidability
If a testamentary disposition that creates an obligation to perform is voidable, the person with the obligation may refuse performance, even if avoidance is excluded under section 2082.
Section 2084
Interpretation favouring effectiveness
If the contents of a testamentary disposition permit more than one interpretation, then in case of doubt preference is to be given to the interpretation under which the disposition may be effective.
Section 2085
Partial ineffectiveness
The ineffectiveness of one of a number of dispositions contained in a will results in the ineffectiveness of the other dispositions only if it is to be assumed that the testator would not have made them without the ineffective disposition.
Section 2086
Reservation of right to make addition
If a testamentary disposition contains the reservation of a right to make an addition but the addition has not been made, the disposition is effective unless it is to be assumed that its effectiveness was intended to be dependent on the addition.
Title 2
Appointment of heirs
Section 2087
Gift of property, of fraction of property or of individual objects
(1) If the testator has given his property or a fraction of his property to the person provided for, the disposition is to be regarded as the appointment of an heir even if the person provided for is not described as an heir.
(2) If the person provided for has been given only individual objects, then in case of doubt it is not to be assumed that he is intended to be an heir, even if he is described as an heir.
Section 2088
Appointment to fractions
(1) If the testator has appointed only one heir and has restricted the appointment to a fraction of the inheritance, the remainder of the inheritance passes under the rules of intestate succession.
(2) The same applies if the testator has appointed more than one heir, restricting each of them to a fraction, and the fractions do not exhaust the whole.
Section 2089
Increase of the fractions
Where the appointed heirs, by the will of the testator, are to be the only heirs, then, if each of them inherits a fraction of the inheritance and the fractions do not exhaust the whole, the fractions are proportionately increased.
Section 2090
Reduction of the fractions
If each of the appointed heirs is appointed to a fraction of the inheritance and the fractions exceed the whole, a proportionate reduction of the fractions takes place.
Section 2091
Undetermined fractions
If more than one heir is appointed without the shares of the inheritance being determined, they are appointed in equal shares, unless sections 2066 to 2069 lead to a different conclusion.
Section 2092
Partial appointment to fractions
(1) If, of more than one heir, some are appointed to fractions and the others without fractions, the latter receive the part of the inheritance that remains.
(2) If the determined fractions exhaust the inheritance, there is a proportionate reduction of the fractions in such a way that each of the heirs appointed without a fraction receives as much as the heir appointed to the smallest fraction.
Section 2093
Joint share of the inheritance
If more than one of several heirs is appointed to one and the same fraction of the inheritance (joint share of the inheritance), then with regard to the joint share of the inheritance the provisions of sections 2089 to 2092 apply with the necessary modifications.
Section 2094
Accrual
(1) If more than one heir is appointed in such a way that they exclude intestate succession, and if one of the heirs ceases to be an heir before or after the date of the devolution of the inheritance, the share of the inheritance of that heir accrues to the other heirs in proportion to their shares of the inheritance. If some of the heirs are appointed to a joint share of the inheritance, the accrual is first effected between them.
(2) If the appointment of an heir disposes of only part of the inheritance and if intestate succession applies with regard to the remainder, then accrual takes place between the appointed heirs only to the extent that they are appointed to a joint share of the inheritance.
(3) The testator may exclude the accrual.
Section 2095
Accrued share of the inheritance
The share of the inheritance that passes to an heir through accrual is deemed to be a separate share of the inheritance with regard to the legacies and testamentary burdens with which this heir or the heir who ceased to be heir is encumbered and with regard to the duty to adjust advancements.
Section 2096
Substitute heir
The testator may, to provide for the case where an heir ceases to be heir before or after the date of the devolution of the inheritance, appoint another person as heir (substitute heir).
Section 2097
Rule of interpretation in the case of substitute heir
If a person is appointed substitute heir for the case where the heir first appointed cannot be heir or for the case where the heir first appointed does not wish to be heir, then in case of doubt it is to be assumed that he is appointed for both cases.
Section 2098
Mutual appointment as substitute heir
(1) If the heirs are appointed mutually or if for one of them the others are appointed as substitute heirs, then in case of doubt it is to be assumed that they are appointed substitute heirs in the proportion of their shares of the inheritance.
(2) If the heirs are appointed mutually as substitute heirs, then in case of doubt heirs who are appointed to a joint share of the inheritance take priority over the others as substitute heirs for this share of the inheritance.
Section 2099
Substitute heir and accrual
The right of the substitute heir takes priority over the right of accrual.
Title 3
Appointment of a subsequent heir
Section 2100
Subsequent heir
The testator may appoint an heir in such a way that the person only becomes an heir after another heir has first been heir (subsequent heir).
Section 2101
Subsequent heir not yet conceived
(1) If a person not yet conceived at the time of the devolution of the inheritance is appointed heir, then in case of doubt it is to be assumed that the person is appointed as subsequent heir. If it does not reflect the intention of the testator that the person appointed should be subsequent heir, the appointment is ineffective.
(2) The same applies to the appointment of a legal person that comes into existence only after the devolution of the inheritance; the provision of section 84 is unaffected.
Section 2102
Subsequent heir and substitute heir
(1) The appointment as a subsequent heir, in case of doubt, also contains the appointment as a substitute heir.
(2) If it is doubtful whether a person is appointed substitute heir or subsequent heir, he is deemed to be a substitute heir.
Section 2103
Order to surrender the inheritance
If the testator has directed that the heir, on a particular date or on the occurrence of a particular event, is to surrender the inheritance to another person, then it is to be assumed that the other person is appointed subsequent heir.
Section 2104
Heirs on intestacy as subsequent heirs
Where the testator has directed that the heir is to be heir only until a particular date or the occurrence of a particular event, without providing who is then to receive the inheritance, then it is to be assumed that the persons appointed as subsequent heirs are those who would be the heirs on intestacy of the testator if he had died on the date or at the time of the occurrence of the event. The treasury is not one of the heirs on intestacy within the meaning of this provision.
Section 2105
Heirs on intestacy as prior heirs
(1) If the testator has directed that the appointed heir is to receive the inheritance only on a particular date or on the occurrence of a particular event, without determining who is to be heir until that date, then the heirs on intestacy of the testator are the prior heirs.
(2) The same applies if the identity of the heir is to be established by an event that occurs only after the devolution of the inheritance or if the appointment of a person who has not yet been conceived at the time of the devolution of the inheritance or a legal person that is not yet in existence at this time as an heir under section 2101 is to be regarded as the appointment of a subsequent heir.
Section 2106
Occurrence of subsequent succession
(1) If the testator has appointed a subsequent heir without determining the time of the event at or on which the subsequent succession is to occur, the inheritance accrues to the subsequent heir on the death of the prior heir.
(2) If the appointment of a person not yet conceived as an heir is to be regarded under section 2101 (1) as the appointment of a subsequent heir, the inheritance accrues to the subsequent heir on his birth. In the case of section 2101 (2), the accrual occurs on the creation of the legal person.
Section 2107
Childless prior heir
If the testator has determined a subsequent heir for the time after the death of a descendant who at the time when the testamentary disposition is made has no descendants or of whom the testator does not know at this time that he has a descendant, then it is to be assumed that the subsequent heir is appointed only for the case where the descendant remains without issue.
Section 2108
Capacity to inherit; inheritability of the subsequent succession
(1) The provision of section 1923 applies to the subsequent succession with the necessary modifications.
(2) If the appointed subsequent heir dies before the circumstances giving rise to subsequent succession occur, but after the date of the devolution of the inheritance, then his right passes to his heirs, unless it is to be assumed that the testator intended otherwise. If the subsequent heir is appointed subject to a condition precedent, the provision of section 2074 applies.
Section 2109
End of effectiveness of subsequent succession
(1) The appointment of a subsequent heir becomes ineffective at the end of a period of thirty years after the devolution of the inheritance, if the circumstances giving rise to subsequent succession do not occur before this time. It remains effective even after this time
1. if subsequent succession is directed for the case where a particular event occurs in relation to the prior heir or to the subsequent heir and the person in relation to whom the event is to occur is living at the time of the devolution of the inheritance,
2. if it is provided that, if a brother or a sister is born to the prior heir or to a subsequent heir, the brother or the sister is his the subsequent heir.
(2) If the prior heir or the subsequent heir in relation to whose person the event is to occur is a legal person, the thirty-year period applies.
Section 2110
Scope of the right of subsequent succession
(1) The right of the subsequent heir extends, in case of doubt, to a share of the inheritance that accrues to the prior heir as the result of a co-heir ceasing to be heir.
(2) The right of the subsequent heir does not extend, in case of doubt, to a preferential legacy given to the prior heir.
Section 2111
Direct substitution
(1) The inheritance includes whatever the prior heir acquires on the basis of a right that is part of the inheritance or as compensation for the destruction, damage or removal of an object of the inheritance or by legal transaction with funds from the inheritance, unless the acquisition is due to him as emoluments. Only when the debtor obtains knowledge that a claim acquired by legal transaction 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.
(2) The inheritance also includes what the prior heir introduces into the inventory of a plot of land that is part of the inheritance.
Section 2112
Right of disposal of the prior heir
The prior heir may dispose of the objects belonging to the inheritance except insofar as the provisions in sections 2113 to 2115 lead to a different conclusion.
Section 2113
Dispositions of plots of land, ships and ships under construction; gifts
(1) The disposition by the prior heir of a plot of land or right in a plot of land that is part of the inheritance or of a registered ship or ship under construction that is part of the inheritance is, in the case where subsequent succession occurs, ineffective to the extent that it would defeat or adversely affect the right of the subsequent heir.
(2) The same applies to the disposition of an object of the inheritance that is made free of charge or for the purpose of fulfilling the promise of a gift made by the prior heir. An exception applies to donations that are made to comply with a moral duty or to show consideration to decency.
(3) The provisions in favour of those who derive rights from an unauthorised person apply with the necessary modifications.
Section 2114
Dispositions of mortgage claims, land charges and annuity land charges
If a mortgage claim, a land charge, an annuity land charge or a ship’s mortgage claim is part of the inheritance, the prior heir has the right of termination and seizure. However, the prior heir may require only that the capital be paid to him and the consent of the subsequent heir is provided or that it is deposited for himself and the subsequent heir. Other dispositions of the mortgage claim, the land charge, the annuity land charge or the ship’s mortgage claim are governed by the provisions of section 2113.
Section 2115
Dispositions in execution of judgment against prior heir
A disposition of an object of the inheritance that is effected by way of execution of judgment or enforcement of seizure or arrest or by the administrator in insolvency proceedings is, in the case where the subsequent succession occurs, ineffective to the extent that it would defeat or adversely affect the right of the subsequent heir. The disposition is effective without restriction if the claim of a creditor of the estate or a right existing in an object of the inheritance is asserted and this right is effective as against the subsequent heir in the case where subsequent succession commences.
Section 2116
Deposit of securities
(1) At the request of the subsequent heir, the prior heir must deposit the bearer instruments that are part of the inheritance together with the renewal coupons with a depositary institution subject to the condition that surrender may be required only with the approval of the subsequent heir. The deposit of bearer instruments that under section 92 are consumable things, and of interest, annuity or dividend coupons may not be demanded. Instruments made out to order and endorsed in blank are equivalent to bearer instruments.
(2) The prior heir may dispose of the deposited instruments only with the approval of the subsequent heir.
Section 2117
Change of registration; conversion
The prior heir may, instead of depositing the bearer instruments under section 2116, have them registered in his name subject to the condition that he may dispose of them only with the approval of the subsequent heir. If the instruments are issued by the Federal Government or by a Land, he may have them converted, subject to the same condition, into registered claims against the Federal Government.
Section 2118
Blocking note in debt ledger
If registered claims against the Federal Government or a Land are part of the inheritance, the prior heir is obliged, at the request of the subsequent heir, to have a note entered in the debt ledger that he may dispose of the claims only with the approval of the subsequent heir.
Section 2119
Investment of money
Money that is to be invested in the long-term under the rules of proper management may be invested by the prior heir only under the provisions applying to the investment of money held in trust for a ward.
Section 2120
Duty of subsequent heir to consent
If, for proper management, in particular in order to discharge obligations of the estate, a disposition is necessary that the prior heir may not make with effect against the subsequent heir, then the subsequent heir has a duty to the prior heir to grant his consent to the disposition. On request, the consent must be declared in notarially certified form. The costs of the certification are borne by the prior heir.
Section 2121
List of objects of inheritance
(1) On request, the prior heir must give the subsequent heir a list of the objects that are part of the inheritance. The list must state the date when it was drawn up and be signed by the prior heir; on request, the prior heir must have his signature notarially certified.
(2) The subsequent heir may require that he be involved in drawing up the list.
(3) The prior heir is entitled, and on the request of the subsequent heir obliged, to have the list drawn up by the competent authority or by a competent official or notary.
(4) The costs of drawing up the list and certifying it are borne by the inheritance.
Section 2122
Determination of the condition of the inheritance
The prior heir may have the condition of the things that are part of the inheritance determined by experts at his own cost. The subsequent heir has the right to do this too.
Section 2123
Economic plan
(1) If a forest is part of the inheritance, both the prior heir and the subsequent heir may require that the degree of use and the nature of the economic treatment be laid down in an economic plan. If a substantial change of circumstances occurs, each party may require a corresponding change of the economic plan. The costs are borne by the inheritance.
(2) The same applies if a mine or another installation designed to extract components of the ground is part of the inheritance.
Section 2124
Costs of maintenance
(1) The prior heir bears the customary cost of maintenance towards the subsequent heir.
(2) The prior heir may pay from the inheritance other expenses that he is permitted to regard in the circumstances as necessary for the purpose of preserving objects of the inheritance. If he pays them from his own property, then the subsequent heir is obliged to reimburse him in the case where subsequent succession occurs.
Section 2125
Outlays; right to remove
(1) If the prior heir makes outlays in relation to the inheritance that do not fall under the provision of section 2124, then the subsequent heir, in the case where subsequent succession occurs, is obliged to reimburse under the provisions on agency without specific authorisation.
(2) The prior heir is entitled to remove an installation with which he has provided a thing that is part of the inheritance.
Section 2126
Extraordinary burdens
The prior heir is not obliged, in relation to the subsequent heir, to bear the extraordinary burdens, which are to be regarded as charged on the original value of the objects of the inheritance. These burdens are governed by the provision in section 2124 (2).
Section 2127
Right to information of subsequent heir
The subsequent heir is entitled to require information from the prior heir on the condition of the inheritance if there is reason to assume that the prior heir is substantially injuring the rights of the subsequent heir by his management.
Section 2128
Provision of security
(1) If the conduct of the prior heir or his unfavourable financial situation give rise to the concern that there may be a substantial injury to the rights of the subsequent heir, the subsequent heir may require the provision of security.
(2) The provisions of section 1052 applying to the obligation of the usufructuary to provide security apply with the necessary modifications.
Section 2129
Effect of deprivation of management
(1) If the prior heir is deprived of the management under the provision of section 1052, he loses the right to dispose of objects of the inheritance.
(2) The provisions in favour of those who derive rights from an unauthorised person apply with the necessary modifications. For the claims that are part of the inheritance, the deprivation of management is effective towards the debtor only if he obtains knowledge of the order made or if a notification of the order is served on him. The same applies to the termination of the deprivation.
Section 2130
Duty to surrender after the occurrence of subsequent succession, duty to render account
(1) The prior heir is obliged, after the occurrence of subsequent succession, to surrender the inheritance to the subsequent heir in the condition that results from a continued proper management until the date of the surrender. The surrender of an agricultural plot of land is governed by the provision of section 596a, and the surrender of a farm is governed by the provisions of sections 596a and 596b with the necessary modifications.
(2) On request, the prior heir must render an account.
Section 2131
Scope of duty of care
With regard to the management, the prior heir owes the subsequent heir only the care that he customarily exercises in his own affairs.
Section 2132
No liability for ordinary wear and tear
The prior heir is not responsible for alterations or deteriorations of things of the inheritance that are caused by proper use.
Section 2133
Improper or excessive taking of fruits
If the prior heir takes fruits contrary to the rules of proper management, or if he takes fruits in excess because this has become necessary as a result of a particular event, he is only entitled to the value of the fruits to the extent that the fruits due to him are adversely affected by the improper or excessive taking of fruits, and the value of the fruits is not to be used to restore the thing under the rules of proper management.
Section 2134
Own use
If the prior heir has used an object of the inheritance for himself, then after subsequent succession begins he is obliged to the subsequent heir to reimburse the value. This does not affect a more extensive liability for fault.
Section 2135
Lease and usufructuary lease in subsequent succession
Where a prior heir has leased a plot of land or registered ship on a lease or a usufructuary lease that is part of the inheritance, then, if the lease or usufructuary lease still exists at the date when subsequent succession occurs, the provision of section 1056 applies with the necessary modifications.
Section 2136
Release of the prior heir
The testator may release the prior heir from the restrictions and obligations of section 2113 (1) and sections 2114, 2116 to 2119, 2123, 2127 to 2131, 2133 and 2134.
Section 2137
Rule of interpretation for the release
(1) If the testator has appointed the subsequent heir to what will remain of the inheritance when subsequent succession occurs, the release of all restrictions and obligations set out in section 2136 is deemed to have been ordered.
(2) The same is to be assumed in case of doubt if the testator has provided that the prior heir is to be entitled to dispose freely of the inheritance.
Section 2138
Restricted obligation to surrender
(1) The obligation to surrender of the prior heir is restricted in cases of section 2137 to the objects of the estate that he still has. He may not require reimbursement of outlays on objects that under this restriction he does not have to surrender.
(2) If the prior heir, contrary to the provision of section 2113 (2), has disposed of an object of the estate or if he has reduced the inheritance with the intention of disadvantaging the subsequent heir, he is liable in damages to the subsequent heir.
Section 2139
Effect of occurrence of subsequent succession
When the situation giving rise to subsequent succession occurs, the prior heir ceases to be heir and the inheritance passes to the subsequent heir.
Section 2140
Dispositions of the prior heir after occurrence of subsequent succession
Even after the situation giving rise to subsequent succession occurs, the prior heir is still entitled to dispose of objects of the estate to the same extent as previously, until he obtains knowledge of the occurrence of subsequent succession or ought to have knowledge. A third party cannot rely on this right if, when he undertakes a transaction, he knows of the occurrence or ought to know.
Section 2141
Maintenance for the mother-to-be of a subsequent heir
If, when the circumstances giving rise to subsequent succession occur, the birth of a subsequent heir is expected, then the claim to maintenance of the mother is governed by the provision of section 1963 with the necessary modifications.
Section 2142
Disclaimer of subsequent succession
(1) The subsequent heir may disclaim the inheritance as soon as the devolution of the inheritance has occurred.
(2) If the subsequent heir disclaims the inheritance, it remains with the prior heir, unless otherwise provided by the testator.
Section 2143
Restoration of extinguished legal relationships
If subsequent succession occurs, 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 2144
Liability of the subsequent heir for the obligations of the estate
(1) The provisions on the restriction of the liability of the heir for the obligations of the estate also apply to the subsequent heir; the place of the estate is taken by what the subsequent heir receives of the inheritance, including the claims he has against the prior heir as such.
(2) The inventory filed by the prior heir also benefits the subsequent heir.
(3) The subsequent heir may rely on the limitation of his liability in relation to the prior heir even if he has unlimited liability in relation to the other creditors of the estate.
Section 2145
Liability of the prior heir for the obligations of the estate
(1) After the occurrence of subsequent succession, the prior heir is still liable for the obligations of the estate to the extent that the subsequent heir is not liable. The liability also continues in existence for those obligations of the estate that in the relationship between the prior heir and the subsequent heir are borne by the prior heir.
(2) After the occurrence of the subsequent succession, the prior heir may refuse the discharge of the obligations of the estate, unless he has unlimited liability, to the extent that what he is owed from the inheritance is not sufficient. The provisions of sections 1990 and 1991 apply with the necessary modifications.
Section 2146
Duty of prior heir to notify creditors of the estate
(1) The prior heir has a duty to the creditors of the estate to notify the occurrence of subsequent succession without undue delay to the probate court. The notice of the subsequent heir takes the place of the notice of the prior heir.
(2) The probate court must allow any person who can credibly establish a legal interest to inspect the notification.
Title 4
Legacies
Section 2147
Person charged with a legacy
The heir or a legatee may be charged with a legacy. Unless the testator provides otherwise, the heir is charged.
Section 2148
More than one person charged with a legacy
If more than one heir or more than one legatee is charged with the same legacy, then in case of doubt the heirs are charged in proportion to their shares of the inheritance, and the legatees in proportion to the value of their legacies.
Section 2149
Legacy for heirs on intestacy
If the testator has provided that an object of the estate is not to pass to the appointed heir, the object is deemed to be left to the heirs on intestacy. The treasury is not one of the heirs on intestacy within the meaning of this provision.
Section 2150
Preferential legacy
A legacy given to an heir (preferential legacy) is deemed to be a legacy even if the heir is charged himself.
Section 2151
Right to decide of the person charged or of a third person in the event of more than one person provided for
(1) The testator may give a legacy to more than one person in such a way that the person charged or a third person must decide which of the plurality of persons is to receive the legacy.
(2) The decision of the person charged is made by declaration to the person who is to receive the legacy; the decision of the third person is made by declaration to the person charged.
(3) If the person charged or the third person is unable to make a decision, the persons provided for are joint and several creditors. The same applies if, upon application by one of the persons concerned, the probate court specifies a period for the person charged or the third person to make the declaration and the period has passed, unless the declaration is made before then. The person receiving the legacy is, in case of doubt, not obliged to divide the legacy.
Section 2152
Choice of persons provided for
If the testator has given a legacy to more than one person in such a way that only one or the other is to receive the legacy, it is to be presumed that the person charged is to decide which of them is to receive the legacy.
Section 2153
Determination of shares
(1) The testator may give a legacy to more than one person in such a way that the person charged or a third person has to determine what each person is to receive from the object of the legacy. The determination is made in accordance with section 2151 (2).
(2) If the person charged or the third person is unable to make the decision, then the persons provided for are entitled to equal shares. The provision of section 2151 (3) sentence 2 applies with the necessary modifications.
Section 2154
Optional legacy
(1) The testator may direct that a legacy be granted in such a way that the person provided for is only to receive one or the other of more than one object. If in such a case the choice is transferred to a third person, it is made by declaration to the person charged.
(2) If the third person is unable to make the choice, the right to choose passes to the person charged. The provision of section 2151 (3) sentence 2 applies with the necessary modifications.
Section 2155
General legacy
(1) If the testator has specified the thing bequeathed only by class, a thing commensurate with the circumstances of the person provided for is to be given.
(2) If the person provided for or a third party is entrusted with the specification of the thing, the provisions set out in section 2154, governing the third party’s choice, apply.
(3) If the specification made by the person provided for or the third person is evidently not commensurate with the circumstances of the person provided for, the person charged has to execute the legacy as if the testator had not given any directions concerning the specification of the thing.
Section 2156
Legacy for a special purpose
When the testator makes a legacy whose purpose he has specified, the testator may leave the determination of the performance of the legacy to the reasonable discretion of the person charged or of a third party. The provisions of sections 315 to 319 apply with the necessary modifications to such a legacy.
Section 2157
Joint legacy
If the same object is left to more than one person, the provisions of sections 2089 to 2093 apply with the necessary modifications.
Section 2158
Accrual
(1) Where the same object is left to more than one person, then if one of them ceases to be a person provided for before or after the devolution of the inheritance, his share accrues to the other persons provided for in proportion to their shares. This applies even if the testator has specified the shares of the persons provided for. If some of the persons provided for are entitled to the same share, accrual occurs among these persons first.
(2) The testator may exclude the accrual.
Section 2159
Independence of the accrual
A share that devolves on a legatee by accrual is, with regard to the legacies and the testamentary burdens with which such legatee or the legatee ceasing to be a legatee is charged, deemed to be a separate legacy.
Section 2160
Prior death of person provided for
A legacy is ineffective if the person provided for is no longer alive at the time of the devolution of the inheritance.
Section 2161
Where the person charged does not inherit
A legacy remains effective, unless it is to be assumed that the testator intended otherwise, if the person charged does not become heir or legatee. In this case, the person charged is the person who benefits directly when the person originally charged does not inherit.
Section 2162
Thirty-year period for a suspended legacy
(1) A legacy that is created subject to a condition precedent or with the specification of a commencement date becomes ineffective at the end of a thirty-year period after the devolution of the inheritance, if the condition has not been satisfied or the date has not arrived before then.
(2) If the person provided for has not yet been conceived at the time of the devolution of the inheritance, or if his identity is established by an event that does not happen until after the devolution of the inheritance, then the legacy becomes ineffective at the end of a thirty-year period after the devolution of the inheritance, unless before then the person provided for is conceived or the event that determines his identity has occurred.
Section 2163
Exceptions to the thirty-year period
(1) In the cases of section 2162, a legacy remains effective even after the expiry of thirty years:
1. if it has been granted in case a particular event occurs in respect of the person charged or the person provided for, and the person or person provided for concerning whom the event is to occur is alive at the time of the devolution of the inheritance;
2. if an heir, a subsequent heir or a legatee is charged with a legacy in favour of his brother or sister in the event that such a brother or sister is born.
(2) If the person charged or the person provided for with regard to whom the event is to occur is a legal person, the period of thirty years applies.
Section 2164
Extension to accessories and claims to compensation
(1) The legacy of a thing extends, in case of doubt, to the accessories existing at the time of the devolution of the inheritance.
(2) If the testator has a claim to compensation for the reduction in value, as a result of damage to the thing after the legacy has been created, the legacy extends, in case of doubt, to this claim.
Section 2165
Charges
(1) If an object belonging to the inheritance is bequeathed, the legatee may not, in case of doubt, demand the discharge of the rights with which the object is charged. If the testator is entitled to the discharge, then in case of doubt the legacy extends to this claim.
(2) If a plot of land bequeathed is subject to a mortgage, land charge or annuity land charge to which the testator himself is entitled, it is to be inferred from the circumstances whether the mortgage, land charge or annuity land charge is to be deemed a bequeathed with the land.
Section 2166
Charge with a mortgage
(1) If a bequeathed plot of land that is part of the inheritance is charged with a mortgage for a debt of the testator, or for a debt which the testator is obliged to the debtor to settle, the legatee is, in case of doubt, obliged in relation to the heir to satisfy the creditor in good time to the extent that the debt is met by the value of the plot of land. The value is determined according to the date on which the ownership passes to the beneficiary; it is calculated by deducting the charges that have priority over the mortgage.
(2) If a third party is obliged in relation to the testator to settle the debt, the obligation of the legatee exists, in case of doubt, only to the extent that the heir cannot require the third party to effect the discharge.
(3) A mortgage of the kind described in section 1190 is not governed by these provisions.
Section 2167
Charge with a blanket mortgage
If, in addition to the bequeathed plot of land, other plots of land belonging to the inheritance are encumbered with the mortgage, the obligation of the legatee specified in section 2166 is, in case of doubt, restricted to the part of the debt that corresponds to the value of the bequeathed plot of land in proportion to the value of all the plots of land. The value is calculated under section 2166 (1) sentence 2.
Section 2168
Charge with a blanket land charge
(1) If a blanket land charge or a blanket annuity land charge exists over more than one plot of land belonging to an inheritance and if one of these plots of land has been bequeathed, the beneficiary is, in case of doubt, obliged in relation to the heir to satisfy the creditor to the amount of the share of the land charge or the annuity land charge which is proportional to the value that the bequeathed plot of land has compared to the value of all of the plots of land. The value is calculated under section 2166 (1) sentence 2.
(2) Where, in addition to the bequeathed plot of land, a plot of land not belonging to the inheritance is encumbered with a blanket land charge or blanket annuity land charge, the provisions of section 2166 (1) and of section 2167 apply with the necessary modifications, if at the time of the devolution of the inheritance the testator is obliged, in relation to the owner of the other plot of land, or a predecessor in title of the owner, to satisfy the creditor.
Section 2168a
Application to ships, ships under construction and ship mortgages
Section 2165 (2) and sections 2166 and 2167 apply with the necessary modifications to registered ships, ships under construction and to ship mortgages.
Section 2169
Legacy of foreign objects
(1) The legacy of a specific object is ineffective to the extent that the object, at the time of the devolution of the inheritance, does not belong to the inheritance, unless the object is to be bequeathed to the person provided for even in the event that it does not belong to the inheritance.
(2) If the testator only had the bequeathed thing in his possession, its possession is, in case of doubt, deemed to be bequeathed, unless it does not grant any legal advantage to the person provided for.
(3) If the testator is entitled to a claim to the delivery of the bequeathed object or, if the object was destroyed or taken away from the testator after directions were given concerning the legacy, or to the reimbursement of its value, the claim is, in case of doubt, deemed to be bequeathed.
(4) An object does not belong to the inheritance within the meaning of subsection (1), if the testator is obliged to sell it.
Section 2170
Legacy to be procured
(1) If the legacy of an object which does not belong to the inheritance at the time of devolution is effective in accordance with section 2169 (1), the person charged must procure the object for the person provided for.
(2) If the person charged is unable to procure the object, he must pay the value thereof. If the procurement is possible only at disproportionate costs, the person charged can release himself by paying the value.
Section 2171
Impossibility, statutory prohibition
(1) A legacy that is directed at an act of performance that at the time of devolution is impossible for everyone or infringes a statutory prohibition existing at this time is ineffective.
(2) The validity of the legacy is not precluded by the impossibility of performance, if the impossibility can be rectified and the legacy is to be bequeathed in the event that performance becomes possible.
(3) Where a legacy which is impossible of performance is bequeathed subject to another condition precedent or to commence from a given date, the legacy is valid if the impossibility is rectified before the fulfilment of the condition or the arrival of the date.
Section 2172
Combination, intermixture, mingling of the bequeathed thing
(1) The delivery of a bequeathed thing is also deemed to be impossible if the thing is combined, intermixed or mingled with another thing in such a way that pursuant to sections 946 to 948 the ownership of the other thing extends to it, or co-ownership has arisen, or if it has been processed or transformed in such a manner that pursuant to section 950 the person who produced the new thing has become the owner.
(2) Where the combination, intermixture or mingling is carried out by a person other than the testator and where the testator has acquired co-ownership in this way, co-ownership is, in case of doubt, deemed to be bequeathed; if the testator is entitled to a right to take away the combined thing, this right is, in case of doubt, deemed to be bequeathed. In the case of processing or transformation by a person other than the testator, the provision of section 2169 (3) remains applicable.
Section 2173
Claim as a legacy
If the testator has bequeathed a claim due to him, then, if the claim is settled before the devolution of the inheritance, and if the object delivered is still in existence as part of the inheritance, it is to be presumed, in case of doubt, that this object is to be bequeathed to the person provided for. If the claim was for the payment of a sum of money, then in case of doubt the appropriate amount of money is deemed to be bequeathed, even if such a sum of money is not available in the inheritance.
Section 2174
Claim arising under a legacy
A legacy creates a right for the person provided for to demand delivery of the bequeathed object from the person charged.
Section 2175
Restoration of extinguished legal relationships
If the testator has bequeathed a claim that he has against the heir, or if he has bequeathed a right with which a thing or a right of the heir is charged, the legal relationships extinguished by the merger of a right and an obligation or of a right and a charge as a result of the devolution of the inheritance are deemed not to have been extinguished in relation to the legacy.
Section 2176
Devolution of the legacy
The claim of the legatee comes into existence (devolution of the legacy) on the devolution of the inheritance, notwithstanding the right to disclaim the legacy.
Section 2177
Devolution in the event of a condition or a time limit
If a legacy has been created subject to a condition precedent or with the specification of a commencement date, and if the condition is satisfied or the date arrives only after the devolution of the inheritance, the devolution of the legacy occurs on the satisfaction of the condition or on the arrival of the date.
Section 2178
Devolution in the event of a person provided for not yet conceived or determined
If a person provided for has not yet been conceived at the time of the devolution of the inheritance, or if his identity is to be established by an event occurring only after the devolution of the inheritance, the devolution of the legacy occurs on the date of birth in the former case, on the occurrence of the event in the latter case.
Section 2179
Period of suspense
For the time between the devolution of the inheritance and the devolution of the legacy, the cases set out in sections 2177 and 2178 are governed by the provisions applying to a case where an act of performance is owed subject to a condition precedent.
Section 2180
Acceptance and disclaimer
(1) The legatee can no longer disclaim the legacy after he has accepted it.
(2) The acceptance and the disclaimer of the legacy are made by declaration to the person charged. The declaration may be made only after the devolution of the inheritance; it is ineffective if it is made subject to a condition or a stipulation as to time.
(3) The provisions of section 1950, section 1952 (1) and (3) and section 1953 (1) and (2), governing the acceptance or disclaimer of an inheritance, apply with the necessary modifications.
Section 2181
Discretionary due date
If the time to execute the legacy is left to the free discretion of the person charged therewith, then in case of doubt performance becomes due on the death of the person charged.
Section 2182
Liability for legal defects
(1) If an object specified only by class is bequeathed, the person charged has the same obligations as a seller under the provisions set out in section 433 (1) sentence 1 and sections 436, 452 and 453. He must procure the object for the legatee free of legal defects within the meaning of section 435. Section 444 applies with the necessary modifications.
(2) In case of doubt, the same applies if a particular object which does not belong to the inheritance is bequeathed, notwithstanding the limitation of liability following from section 2170.
(3) If a plot of land is the object of the legacy, then in case of doubt the person charged therewith is not responsible for the freedom of the plot of land from easements, restricted personal easements and charges on land.
Section 2183
Liability for material defects
Where a thing specified only by class is bequeathed, then if the thing delivered is defective, the legatee may demand that he be given a thing free from defects instead of the defective thing. If the person charged has fraudulently concealed a material defect, the legatee may demand damages for nonperformance in lieu of delivery of a thing free of defects without having to set a deadline for cure. The provisions governing liability for material defects with regard to the purchase of a thing apply to these claims with the necessary modifications.
Section 2184
Fruits and emoluments
If a particular object belonging to the inheritance is bequeathed, the person charged is also to deliver to the legatee the fruits taken after the devolution of the legacy and whatever else he has acquired by reason of the bequeathed right. The person charged is not obliged to make compensation for emoluments that are not part of the fruits.
Section 2185
Reimbursement of outlays and expenses
If a specific thing belonging to the inheritance is bequeathed, the person charged may demand compensation under the provisions that govern the relationship between the possessor and the owner for the outlays made on the thing after the devolution of the inheritance and for expenses he incurred after the devolution of the inheritance to pay the charges on the thing.
Section 2186
Due date of sublegacy or testamentary burden
If a legatee is charged with a legacy or a testamentary burden, he is not obliged to perform the legacy or testamentary burden until he is entitled to demand the performance of the legacy bequeathed to him.
Section 2187
Liability of the main legatee
(1) A legatee who is charged with a legacy or a testamentary burden may refuse to perform the legacy bequeathed to him even after it has been accepted to the extent that whatever he has received from the legacy is insufficient for performance.
(2) If, under section 2161, another person takes the place of the charged legatee, this person does not have greater liability than the legatee would have.
(3) The provisions of section 1992, governing the liability of the heir, apply with the necessary modifications.
Section 2188
Reduction of the charges
If the performance due to a legatee is reduced on the basis of the limitation of the liability of the heir, on the basis of a claim to a compulsory share or under section 2187, the legatee may, unless it is to be assumed that the testator intended otherwise, reduce the charges imposed on him in the same proportion.
Section 2189
Directions concerning priority
To provide for the situation where the legacies and testamentary burdens imposed on the heir or a legatee are reduced by reason of the limitation of the liability of the heir, as a result of a claim to a compulsory share, or under sections 2187 and 2188, the testator may direct by disposition mortis causa that a legacy or a testamentary burden is to have priority over the other charges.
Section 2190
Substitute legatee
If the testator has bequeathed the object of the legacy to another in the case where the original person provided for does not acquire it, the provisions of section 2097 to 2099, governing appointment of a substitute heir, apply with the necessary modifications.
Section 2191
Subsequent legatee
(1) Where a testator bestows a bequeathed object on a third party at a particular time or upon an event occurring after the devolution of the legacy, the first legatee is deemed to be charged.
(2) The provisions of sections 2102, 2106 (1), 2107 and of section 2110 (1), governing the appointment of a subsequent heir, apply to the legacy with the necessary modifications.
Title 5
Testamentary burden
Section 2192
Applicable provisions
A testamentary burden is governed, with the necessary modifications, by the provisions set out in sections 2065, 2147, 2148, 2154 to 2156, 2161, 2171 and 2181 that apply to testamentary gifts.
Section 2193
Appointment of the beneficiary, period for fulfilment
(1) The testator, upon making a testamentary burden whose purpose of which he has specified, can leave it to the person charged or to a third party to determine the person to whom performance is to be rendered.
(2) Where the person charged has the right of determination, and where he has been ordered by a final judgment to fulfil the testamentary burden, the plaintiff may specify a reasonable period of time for him to fulfil the testamentary burden; after the expiry of the period of time the plaintiff is entitled to make the determination if the fulfilment is not effected in good time.
(3) If a third party has the right of determination, it is exercised by declaration to the person charged. If the third person is unable to make such a determination, the right of determination passes to the person charged. The provision under section 2151 (3) sentence 2 applies with the necessary modifications; those concerned within the meaning of this provision include the person charged and those entitled to demand the fulfilment of the testamentary burden.
Section 2194
Claim for fulfilment
The fulfilment of a testamentary burden may be demanded by an heir, a co-heir and any person who would directly benefit from the end of the involvement of the person initially charged with the testamentary burden. If the fulfilment is in the public interest, the public authority responsible may also demand fulfilment.
Section 2195
Relationship between testamentary burden and gift
The ineffectiveness of a testamentary burden results in the ineffectiveness of the gift made under the testamentary burden only if it is to be presumed that the testator would not have made the gift without the testamentary burden.
Section 2196
Impossibility of fulfilment
(1) Where the fulfilment of a testamentary burden becomes impossible as a result of a circumstance for which the person charged is responsible, the person who would benefit directly if the person initially charged ceases to be involved may, in accordance with the provisions on the return of unjust enrichment, demand the delivery of the gift to the extent that this gift should have been used to fulfil the testamentary burden.
(2) The same applies if the person charged has been ordered by a final and absolute judgment to fulfil a testamentary burden which cannot be executed by a third person and the admissible enforcement measures have been applied to him without success.
Title 6
Executor
Section 2197
Appointment of an executor
(1) A testator may appoint one or more executors by will.
(2) The testator may appoint another executor to provide for the event that the appointed testator ceases to be an executor before or after acceptance of the office.
Section 2198
Determination of the executor by a third person
(1) The testator may leave the determination of the person to act as executor to a third party. The determination is made by declaration to the probate court; the declaration must be submitted in officially certified form.
(2) The right of determination of the third party is extinguished on the expiry of a period specified for him by the probate court upon application by one of the persons concerned.
Section 2199
Appointment of co-executor or successor
(1) The testator may authorise the executor to appoint one or more co-executors.
(2) The testator may authorise the executor to appoint a successor.
(3) The appointment is made in accordance with section 2198 (1) sentence 2.
Section 2200
Appointment by the probate court
(1) If the testator, in the will, has requested the probate court to appoint an executor, the probate court may make the appointment.
(2) The probate court should, before making this appointment, hear the persons concerned if this can be done without any significant delay and without disproportionate costs.
Section 2201
Ineffectiveness of the appointment
The appointment of the executor is ineffective if, at the time when he is to enter upon office, he is incapable of contracting or has limited capacity to contract or has been given a custodian to attend to his property affairs under section 1896.
Section 2202
Acceptance and refusal of office
(1) The office of the executor begins at the time when the appointed person accepts the office.
(2) The acceptance and the refusal of the office is made by declaration to the probate court. The declaration may be made only after the devolution of the inheritance; it is ineffective if it is made subject to a condition or a stipulation as to time.
(3) The probate court may, on application by one of the persons concerned, specify a period for the person appointed to declare whether or not he will accept the office. On the expiry of the period the office is deemed to have been refused unless the acceptance thereof is declared before then.
Section 2203
Task of the executor
The executor must execute the testamentary dispositions of the testator.
Section 2204
Partitioning of the estate between co-heirs
(1) The executor must, if there is more than one heir, effect a partitioning of the estate among them in accordance with sections 2042 to 2057a.
(2) The executor must hear the heirs on the scheme of partitioning prior to the execution thereof.
Section 2205
Administration of the estate, power of disposal
The executor must administer the estate. In particular, he is entitled to take possession of the estate and to dispose of the objects of the estate. He is entitled to make gratuitous dispositions only to the extent that they are made to discharge a moral obligation or from consideration for common decency.
Section 2206
Incurring obligations
(1) An executor is entitled to incur obligations on behalf of the estate to the extent that it is necessary to incur them for the proper administration thereof. If the executor is entitled to dispose of an object of the estate, he may also incur an obligation on account of the estate.
(2) The heir is obliged to grant his consent to the incurring of such obligations, notwithstanding his right to assert the limitation of his liability for the obligations of the estate.
Section 2207
Extended authority
The testator may direct that the executor is not to be restricted in incurring obligations on account of the estate. Even in such a case, the executor is entitled to make a promise of donation only in compliance with section 2205 sentence 3.
Section 2208
Limitation of the rights of the executor, execution by the heir
(1) The executor does not have the rights specified in sections 2203 to 2206 to the extent that it is to be presumed that the testator did not intend that he should have them. If only individual objects of the estate are subject to the administration of the executor, he is entitled to the powers specified in section 2205 sentence 2 only in respect of these objects.
(2) If the executor is not required to execute the dispositions of the testator himself, he may demand execution from the heir, unless it is to be assumed that the testator intended otherwise.
Section 2209
Permanent execution
The testator may entrust an executor with the administration of the estate without assigning to him any tasks other than those of the administration; he may also direct that the executor is to continue the administration after the completion of any other tasks assigned to him. In case of doubt, it is to be presumed that such an executor has been granted the authorisation set out in section 2207.
Section 2210
Thirty-year period for permanent execution
A direction made under section 2209 becomes ineffective if thirty years have passed since the devolution of the inheritance. The testator may, however, direct that the administration is to continue until the death of the heir or of the executor, or until the occurrence of another event in the person of one or other of them. The provision of section 2163 (2) applies with the necessary modifications.
Section 2211
Limitation on dispositions of the heir
(1) The heir may not dispose of an object of the estate subject to the administration of the executor.
(2) The provisions in favour of those who derive rights from an unauthorised person apply with the necessary modifications.
Section 2212
Assertion in court of the rights subject to the execution of the will
A right subject to the administration of the executor may be asserted only by the executor in court.
Section 2213
Assertion in court of claims against the estate
(1) A claim that is directed against the estate may be asserted in court both against the heir and against the executor. If the executor is not entitled to administer the estate, the claim may be asserted only against the heir. A claim to a compulsory share may be asserted only against the heir, even if the executor is entitled to administer the estate.
(2) The provision set out in section 1958 does not apply to the executor.
(3) A creditor of the estate who asserts his claim against the heir may also assert his claim against the executor to the extent that the latter is required to permit execution against the objects of the estate subject to his administration.
Section 2214
Creditors of the heir
Creditors of the heir who are not creditors of the estate may not have recourse to the objects of the estate subject to the administration of the executor.
Section 2215
Inventory of the estate
(1) The executor must provide to the heir an inventory of the objects of the estate subject to his administration, and of any known obligations of the estate, without undue delay after the acceptance of the office, and render any other assistance required to take an inventory.
(2) The inventory must show the date on which the inventory was taken and bear the signature of the executor; upon demand, the executor must have his signature officially certified.
(3) The heir may demand that he be asked to take part in taking the inventory.
(4) The executor is entitled and, at the demand of the heir, is obliged to have the inventory taken by the competent public authority or by a competent official or notary.
(5) The costs of taking the inventory and the official certification are charged to the estate.
Section 2216
Proper administration of the estate, compliance with directions
(1) The executor is obliged to administer the estate in a proper manner.
(2) Directions for the administration that the testator has given by testamentary disposition are to be complied with by the executor. Upon application by the executor or by any other party concerned, they may, however, be cancelled by the probate court if compliance with them would substantially endanger the estate. The court should, as far as possible, hear the persons concerned prior to making a decision.
Section 2217
Transfer of objects of the estate
(1) The executor must, upon demand, transfer to the heir for his free disposal any objects of the estate which the executor evidently does not require to perform his duties. Upon this transfer, his right to administer these objects is extinguished.
(2) The executor may not refuse to transfer the objects by reason of any obligations of the estate which are not based on a legacy or a testamentary burden, or by reason of any legacies or testamentary burdens that are subject to a condition or due on a specific date, if the heir provides security for the discharge of the obligations or for the fulfilment of the legacies or testamentary burdens.
Section 2218
Legal relationship to the heir; rendering of accounts
(1) The legal relationship between the executor and the heir is governed, with the necessary modifications, by the provisions of sections 664, 666 to 668, 670, of section 673 sentence 2 and section 674 applying to a mandate.
(2) If the administration lasts for longer, the heir may demand that an account be rendered every year.
Section 2219
Liability of the executor
(1) Where the executor commits a breach of the duties imposed upon him, he is, if he is at fault, responsible to the heir and, to the extent that a legacy is to be fulfilled, also to the legatee for the damage arising therefrom.
(2) If there is more than one executor who is at fault, they are liable as joint and several debtors.
Section 2220
Mandatory law
The testator may not release the executor from the duties imposed upon him by sections 2215, 2216, 2218 and 2219.
Section 2221
Remuneration of the executor
The executor may demand reasonable remuneration to perform the duties of his office, unless the testator has provided otherwise.
Section 2222
Executor for the subsequent heir
The testator may also appoint an executor for the purpose of exercising the rights and performing the duties of a subsequent heir until the occurrence of the directed subsequent succession.
Section 2223
Executor of a legacy
The testator may also appoint an executor for the purpose of this person ensuring the execution of the charges imposed on a legatee.
Section 2224
More than one executor
(1) More than one executor perform the duties of the office jointly; in the case of a difference in opinion, the probate court decides. If one of them ceases to be involved, the other executors are to perform the duties of the office alone. The testator may give different directions.
(2) Each executor is entitled, without the approval of the other executors, to take any measures that are necessary to preserve an object of the estate that is subject to their joint administration.
Section 2225
Expiry of the office of the executor
The office of the executor expires if he dies or if an event occurs which would render his appointment under section 2201 ineffective.
Section 2226
Notice of termination by the executor
The executor may give notice of termination of the office at any time. Notice is given by declaration to the probate court. The provision of section 671 (2) and (3) applies with the necessary modifications.
Section 2227
Dismissal of the executor
The probate court may, upon the application of one of the persons concerned, dismiss the executor if a compelling reason exists; a compelling reason is, in particular, a gross breach of duty, or his incapacity to effect proper management.
Section 2228
Inspection of records
The probate court must permit any person who credibly establishes a legal interest to inspect the declarations made in accordance with section 2198 (1) sentence 2, section 2199 (3), section 2202 (2) and section 2226 sentence 2.
Title 7
The making and revocation of a will
Section 2229
Testamentary capacity of minors, lack of testamentary capacity
(1) A minor may make a will only once he has attained his sixteenth year of age.
(2) The minor does not need the consent of his legal representative to make a will.
(3) (repealed)
(4) A person who is incapable of realising the importance of a declaration of intent made by him and of acting in accordance with this realisation on account of pathological mental disturbance, mental deficiency or derangement of the senses may not make a will.
Section 2230
(repealed)
Section 2231
Regular wills
A will may be made in a regular form
1. by declaration to a notary,
2. by a declaration made by the testator in accordance with section 2247.
Section 2232
Public will
A will made by declaration to a notary is made by the testator declaring his last will to the notary or handing the notary a document with the statement that the document contains his last will. The testator may hand over the document either unsealed or sealed; it is not required to be written by him.
Section 2233
Special cases
(1) If the testator is a minor, he may make a will only by oral declaration to a notary or by handing over an unsealed document.
(2) If the testator is, according to his own statement or in the firm opinion of the notary, incapable of reading text, he may make the will only by making a declaration to the notary.
Sections 2234 – 2246
(repealed)
Section 2247
Holographic will
(1) The testator may make a will by a declaration written and signed in his own hand.
(2) The testator should state in the declaration the time when (day, month and year) and the place where he wrote it down.
(3) The signature should contain the first name and the last name of the testator. If the testator signs in another manner and this signature suffices to establish the identity of the testator and the seriousness of his declaration, such a signature does not invalidate the will.
(4) A person who is a minor or is incapable of reading text may not make a will in accordance with the provisions above.
(5) Where a will made under subsection (1) does not contain any information about the time when it was made and where this causes doubts about its validity, the will is to be deemed to be valid only if the necessary ascertainments about the time when it was made can be established in some other manner. The same applies with the necessary modifications to a will that does not contain any information about the place where it was made.
Section 2248
Custody of a holographic will
A will made in accordance with section 2247 is to be taken into special official custody upon demand by the testator.
Section 2249
Emergency will made before the mayor
(1) If it is feared that the testator will die sooner than it is possible to make a will before a notary, he may make the will by means of a record drawn up by the mayor of the municipality where he resides. The mayor must call in two witnesses for the authentication. A person who is provided for or appointed as an executor in the will to be recorded may not be called as a witness; the provisions of sections 7 and 27 of the Notarial Recording Act [Beurkundungsgesetz] apply with the necessary modifications. The making of the will is governed by the provisions of sections 2232 and 2233 as well as the provisions of sections 2, 4, 5 (1), sections 6 to 10, 11 (1) sentence 2, (2), section 13 (1) and (3), sections 16, 17, 23, 24, 26 (1) no. 3, 4, (2), and sections 27, 28, 30, 32, 34 and 35 of the Notarial Recording Act [Beurkundungsgesetz]; the mayor takes the place of the notary. The record must also be signed by the witnesses. If the testator, according to his own statement or in the firm opinion of the mayor, is incapable of signing his name, the signature of the testator is replaced by this statement or firm opinion being included in the record.
(2) The fear that it will no longer be possible to make a will before a notary should be stated in the record. The validity of the will is not affected if the fear was unfounded.
(3) The mayor should draw the attention of the testator to the fact that the will becomes invalid if the testator survives the expiry of the period provided by section 2252 (1) and (2). He should state in the record that this notification has been given.(repealed)
(4) (repealed)
(5) The will may also be made before a person who is appointed under the provisions of statute to represent the mayor. The representative should state in the record the basis of his power of agency.
(6) If formal errors were made when drafting the record concerning the making of the will as provided for in the above subsections, but it can nevertheless be assumed with certainty that the will contains a reliable rendering of the testator’s declaration, then the procedural error does not detract from the effectiveness of the recording.
Section 2250
Emergency will before three witnesses
(1) A person who is staying in a place which, as a result of extraordinary circumstances, is blocked off in such a way that making a will before a notary is not possible or extremely difficult, may make the will in the form specified by section 2249 or by oral declaration before three witnesses.
(2) A person who is in such imminent mortal danger that it is probable that even making a will in accordance with section 2249 is no longer possible may make the will by oral declaration before three witnesses.
(3) If the will is made by oral declaration before three witnesses, a record to this effect must be made. The witnesses are governed by the provisions of section 6 (1) nos. 1 to 3, sections 7 and 26 (2) nos. 2 to 5 and section 27 of the Notarial Recording Act [Beurkundungsgesetz] with the necessary modifications, and the record is governed by the provisions of sections 8 to 10, 11 (1) sentence 2, (2), section 13 (1), (3) sentence 1, sections 23 and 28 of the Notarial Recording Act [Beurkundungsgesetz] as well as the provisions of section 2249 (1) sentences 5 and 6, (2) and (6) with the necessary modifications. The record may be made in another language apart from German. The testator and the witnesses must be sufficiently familiar with the language of the record. This should be stated in the record if it is written in a language other than German.
Section 2251
Emergency will made at sea
A person who during a sea voyage is on board a German ship beyond a domestic port may make a will by oral declaration before three witnesses in accordance with section 2250 (3).
Section 2252
Period of validity of emergency wills
(1) A will made in accordance with section 2249, section 2250 or section 2251 is deemed not to have been made if three months have passed since it was made and the testator is still alive.
(2) The beginning and the running of the period are suspended for as long as the testator is incapable of making a will before a notary.
(3) If, in the case provided for by section 2251, the testator sets off on a new sea voyage before the expiry of the period, the period is interrupted with the effect that at the end of the new voyage the entire period starts to run from the beginning.
(4) Where after the expiry of the period the testator is declared dead, or where the time of his death is established in accordance with the provisions of the Missing Persons Act [Verschollenheitsgesetz], the will remains effective if the period had not yet ended at the time when, according to available information, the testator was still alive.
Section 2253
Revocation of the will
The testator may revoke a will and also an individual disposition contained in a will at any time.
Section 2254
Revocation by will
The revocation is made by will.
Section 2255
Revocation by destruction or changes
A will may also be revoked by the testator, with the intention of revocation, destroying the testamentary instrument or making changes to it that customarily express the intention to revoke a written declaration of intent. If the testator has destroyed the testamentary instrument or changed it in the manner described, it is presumed that he intended the revocation of the will.
Section 2256
Revocation by the revocation of the will from official custody
(1) A will made before a notary, or in accordance with section 2249, is deemed to have been revoked if the document taken into special official custody is returned to the testator. The office returning the document should inform the testator of the consequence of the return stated in sentence 1, note this on the document and place on record that both these things have been done.
(2) The testator may demand the return of the will at any time. The will may only be returned to the testator personally.
(3) The provisions of subsection (2) also govern a will deposited in accordance with section 2248; the return does not affect the effectiveness of the will.
Section 2257
Revocation of the revocation
If the revocation by will of a testamentary disposition is revoked, the disposition is, in case of doubt, effective as if it had not been revoked.
Section 2258
Revocation by a later will
(1) The making of a will revokes an earlier will to the extent that the later will is at variance with the former.
(2) If the later will is revoked, the earlier will is, in case of doubt, effective in the same way as if it had not been revoked.
Section 2258a
(repealed)
Section 2258b
(repealed)
Section 2259
Obligation to deliver
(1) A person who is in possession of a will which has not been placed in special official custody is obliged to deliver it to the probate court without undue delay after he has obtained knowledge of the death of the testator.
(2) If a will is in the official custody of a public authority other than a court, it must be delivered to the probate court after the death of the testator. The probate court must arrange for its delivery once it has obtained knowledge of the will.
Section 2260
(repealed)
Section 2261
(repealed)
Section 2262
(repealed)
Section 2263
Voidness of a prohibition on opening the will
A direction given by the testator prohibiting his will against being opened immediately after his death is void.
Section 2263a, 2264
(repealed)
Title 8
Joint will
Section 2265
Joint will made by spouses
A joint will may be made only by spouses.
Section 2266
Joint emergency will
A joint will may be made in accordance with sections 2249 and 2250, even if the requirements set out there are satisfied by only one of the spouses.
Section 2267
Joint holographic will
To make a joint will in accordance with section 2247, it suffices if one of the spouses makes a will in the manner provided there, and the other spouse co-signs the joint declaration in his own hand. The co-signing spouse should thereby state the time (day, month and year) and the place at which his signature was affixed.
Section 2268
Effect of nullity or dissolution of marriage
(1) A joint will is ineffective in its entirety in the cases set out in section 2077.
(2) If the marriage is dissolved before the death of one of the spouses, or if the requirements of section 2077 (1) sentence 2 or 3 are fulfilled, the dispositions remain effective to the extent that it is to be assumed that they would also have been made for this case.
Section 2269
Reciprocal appointment
(1) If the spouses have specified in a joint will, by which they reciprocally appointed each other heir, that after the death of the survivor the estate of both is to pass to a third party, then it is to be assumed, in case of doubt, that the third party has been appointed the heir, for the whole estate, of the spouse to die later.
(2) If in such a joint will the spouses have directed that a legacy be given that is to be performed after the death of the survivor, it is to be assumed, in case of doubt, that the legacy is not to pass to the person provided for until the death of the survivor.
Section 2270
Reciprocal dispositions
(1) If the spouses have made dispositions in a joint will of which it is to be assumed that the disposition of one spouse would not have been made without the disposition of the other, the voidness or revocation of one of the dispositions results in the ineffectiveness of the other.
(2) Such a relationship of the dispositions to one another is, in case of doubt, to be presumed if the spouses mutually provide for each other in the will, or if one spouse makes a testamentary gift to the other and for the event of the survival of the beneficiary a disposition is made in favour of a person who is related to the other spouse or is close to him in another way.
(3) Dispositions other than appointments of heirs, legacies or testamentary burdens are not governed by the provision set out in subsection (1).
Section 2271
Revocation of reciprocal dispositions
(1) The revocation of a disposition which is related to a disposition of the other spouse in the way described in section 2270 is to be effected during the lifetimes of the spouses in accordance with the provision of section 2296 governing revocation of a contract of inheritance. A spouse may not, during the lifetime of the other, make a new disposition mortis causa unilaterally revoking his original disposition.
(2) The right of revocation expires on the death of the other spouse; the survivor may, however, revoke his disposition if he disclaims the testamentary gift made to him. Even after the acceptance of the testamentary gift, the survivor is entitled to revoke in accordance with section 2294 and section 2336.
(3) If a testamentary gift has been given to a descendant of both spouses or of one of the spouses who is entitled to compulsory share, the provision of section 2289 (2) applies with the necessary modifications.
Section 2272
Revocation of official custody
A joint will may be revoked under section 2256 only by both spouses.
Section 2273
(repealed)
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