At the start of a new year in particular, many people make good resolutions, including finally addressing the matter of arrangements for a possible will.
As a rule, you should seek legal advice on this matter, including to determine whether the statutory provisions already adequately reflect your intended succession planning. Let us assume a family with two adult children. In this case, if the first spouse dies, under the law the surviving spouse would inherit half of the estate together with the two children (each inheriting a quarter) as an undivided community of heirs. This is often not desired, particularly where the spouses own real estate.
The question therefore arises as to an alternative: a joint spousal will.
What types of spousal wills are there?
Spouses have various options available to them for regulating their estate. They may each draw up their own individual will, or they may execute a joint will. Both are subject to the statutory formal requirements and may be made either as a private handwritten will or by notarial deed. If the spouses opt for a joint will, the question arises as to how this spousal will should specifically be structured. Frequently, succession is regulated by means of the so-called Berlin Will (Berliner Testament). An alternative to the Berlin Will is the so-called Sylt Will (Sylter Testament).
What is the Berlin Will?
The Berlin Will provides that the spouses appoint each other as sole heirs, and that the surviving spouse, upon his or her own death, is succeeded by jointly designated final heirs (Schlusserben), usually the couple's joint children. However, it is also possible (particularly in patchwork families) to appoint the children of only one spouse or other persons as final heirs.
What is a Sylt Will?
Under the Sylt Will, the surviving spouse is not the heir; rather, the children of the spouses inherit the deceased parent's estate directly upon that parent's death. However, the surviving spouse is not left empty-handed. Instead, he or she receives, for example by way of a legacy, a usufruct right (Nießbrauch) over various estate assets. For instance, the surviving spouse may receive a usufruct right (or right of residence) in the family property, as well as legacies of bank account assets or other valuables. Upon the death of the last surviving spouse, the children inherit his or her estate. Any reserved usufruct rights expire upon his or her death.
What are the differences between a Sylt Will and a Berlin Will?
Unlike the Berlin Will, the Sylt Will does not appoint the surviving spouse as sole heir. As a result, inheritance tax allowances vis-a-vis the testator can generally be used more effectively. On the other hand, the surviving spouse receives assets in the form of a usufruct or other legacies, so that the financial security of the surviving spouse is ensured.
For advice on drafting your will, attorney Ms Julia Gerstein-Thole is at your disposal.
