❗️Nachlassplanung and provision for a situation in which one no longer decides for oneself könnte❗️

❗️Einleitung

As I found out in my question a few days ago, there is a lot of interest here for this topic. Since I was able to find some time in between at Easter, here it is.

Especially with younger people it is common that in my opinion they are not well prepared or not prepared at all for situations like a sudden death or even for an event why one is no longer able to make important decisions regarding one's own life. Of course, these are events that are often far away. Moreover, the thought of one's own demise is not particularly pleasant. Nevertheless, I consider it important to deal with it so that one's own wishes are taken into account in the best possible way. This often does not require much time.

I would like to point out in advance that I basically assume the correctness based on my knowledge and would like to keep it as simple as possible. However, there is no guarantee of completeness here. In addition, it is pointed out that I do not belong to the legal advisory professions, so that everyone is responsible for himself.

❗️Vorsorge for a situation in which you can no longer decide for yourself

Imagine the following situation: Person X is in a serious car accident. He survives seriously injured and is now placed in an artificial coma. Since X cannot make decisions for his affairs due to his (temporary) incapacity, someone else must do so. But who?

Many assume that this is automatically done by the wife or parents. This is wrong. Unless X has made arrangements, a court-ordered guardianship would have to be set up. Although this can also be done by a relative, it takes some time, may cost money and means a lot of paperwork with the court for the relative. In addition, the caregiver may have to account for all expenses incurred on behalf of the person being cared for after they have been terminated, and prove this with invoices.

To prevent this, X could determine in advance who can represent him in such cases or how his wishes are taken into account. There are several ways to do this: Care directive, living will or health care proxy. Since the health care proxy is the complete package, so to speak, it will be discussed in more detail.

❗️ Health care proxy:

This is where you can specify who is to make decisions on your behalf. It can be specified separately for all areas of responsibility, for example health matters or residence. If the authorized representative is to carry out real estate transactions, it is advisable to issue a notarized power of attorney. In other cases, it is perfectly sufficient to download the BMJV template and fill it out (see here: https://www.bmj.de/SharedDocs/Downloads/DE/Service/Formulare/Vorsorgevollmacht.html). Filling this out takes less than 5 min, but saves the relatives a lot of time. It would also be possible to register this power of attorney in the precautionary register (vorsorgeregister.de) for a small fee, so that the power of attorney can be found in case of emergency.

It would also be important to mention that you should give the power of attorney to a person you trust in this regard. Since the proxy can perform many actions without control, this allows scope for fraud and embezzlement.

❗️Nachlassplanung

It should be said at the outset that it is important to always review and, if necessary, modify one's estate plan as life circumstances change.

In my opinion, estate planning is important so that one's will is respected in the best possible way and thus disputes in the family environment can be avoided.

1 Who determines what I inherit?

If no instructions have been made, the inheritance is governed by the provisions of §§ 1922 ff. BGB. In the case of a testator with a child and a wife (legal matrimonial property regime), for example, this results in a quota of ½ of the estate each.

However, it is possible to make one's own arrangements. This can be done, for example, in an individual will, a spouse's will or an inheritance contract.

2 How do I write a will?

It is important to comply with the formal requirements (§ 2247 BGB). So: handwritten (not!! printed out), date, place, signature with first name and last name. In addition, testamentary capacity (= legal capacity) must be present at the time. A will can also be drawn up at a notary public, who then entrusts the will to the custody of the local court. If it is a joint will of spouses, it is sufficient for one to write the will and the other to co-sign it. This can also be drawn up by a notary. The price of a notarized will depends on the amount of the assets, but can quickly reach four figures.

3 What does it say?

The will names the heirs. If possible exactly with name, first name, date of birth and possibly also the place of residence. Quotas can be given (not a must, in case of doubt it is valid that the appointment is made in equal shares). Withdrawals of the compulsory portion are generally not possible. In addition, an executor could be appointed to ensure that the instructions are enforced.

4 And then?

After the will has been drawn up, it should be kept in a safe place. Obviously, it makes no sense to hide the will under the rug. It should be stored in a place where it can be found by the heirs. If a will is found, the heirs are obliged to send it to the probate court. It is then "opened" in the relevant probate court and if the heirs require a certificate of inheritance (for example, to gain access to a deposit), the heirs would have to apply for a certificate of inheritance.

In fact, that's all it is. Since I want to keep it simple and also don't want to give a lecture on probate law (I certainly couldn't, since several years have passed since my studies), I'll leave it at that.

In some family constellations, it would certainly be too complicated for a layman to draw up a handwritten will, so in these cases I would always refer to the notaries. They can give advice and legal counsel during the notarization process.

If there are any questions, I will gladly try to answer them.

I have done my part. Now it's your turn (who haven't made any arrangements yet). Hopefully I could inspire some to take care of these things.