Advice and representation in inheritance or estate disputes

Germany

The Swiss theologian Joseph Vital Kopp said...

… that, when a person inherits, owners of whole rows of houses will still argue over a cup. In many cases, heirs and relatives are unable to avoid a dispute, whether they like itor not. Would you like to make an inheritance claim or dispute an inheritance? Our inheritance and estate litigation experts will provide everything you need.

1. Status of the heirs

In many cases it is actually unclear who is the rightful beneficiary. There are many different reasons for this. The will may be invalid or allow multiple interpretations of what is written. Equally, the status of heirship can be complicated by family relationships, such as patchwork families, children born out of wedlock or adopted children. In addition, the existence of a testamentary contract can also bring about specific circumstances. What is initially necessary is an overall view of the parties and an analysis of their specific positions within the succession.

2. Disputes in the community of heirs

§ 1922 of the German Civil Code (BGB) states that the assets of the deceased form the inheritance. Where the law of succession is applied, assets are transferred jointly by way of a so-called universal succession to the heir or heirs. In particular, where there are several beneficiaries, the seeds of conflict have often already been sown. This is the so-called community of heirs, where all persons are equally entitled with regard to the estate. Disposal of the accounts needs to be undertaken, the funeral organised and, at the same time, any transactions or activities must be continued. Succession brings together people from very different walks of life into one legal community, but this does not mean that a trusting and human community is automatically created. In fact, it is quite the opposite. In this instance, our will dispute lawyers – who are both professional experts in the field of inheritance disputes and well-versed in tact and discretion – are asked to lead individual parties of the community of heirs through this difficult time, while also making any necessary decisions and securely documenting them.

3. Disputes over the estate

In addition to disputes within a community of heirs, it is possible to dispute the estate itself. What does the estate of the deceased actually consist of? Who has access to the house or to the company? How can the estate be secured, what repairs need to be made at this time? It also quite often happens that heirs do not agree with the testamentary dispositions of the testator. This is especially true if they relate specifically to very valuable assets in the estate. In such situations, it is crucial that you have the support of a consultant who is not personally involved, in order that you can achieve the best solution. Our lawyers specialise in solving disputes in your favour. This can take place out of court or through a trial. When it comes to the crunch, our lawyers will evaluate the chances of success of the claim and the estimated costs.

4. Sale of a portion of inheritance

In order to exclude or end a dispute over inheritance, an inheritance sale could be the best option. With the sale of an individual portion of the estate, the individual status of heirship is ended. The purchase is carried out in accordance with the general provisions of §§ 433 of the German Civil Code (BGB); however, there is a specificity when it comes to succession law: in accordance with § 2034 para 1 BGB, heirs have the right of first refusal. According to the case-law of the Federal Court of Justice, this right of first refusal is common to all heirs. In the event of the sale of a portion of inheritance, this agreement must be signed before a notary public. This regulation applies in general and not only to the sale of property. With the completion of the sale, the status of heirship for these co-heirs is not ended, but is formally maintained. Our lawyers are specialised in tax law and can provide advice regarding the details of an inheritance sale and the associated tax implications.

5. Apportionment and distribution of the estate

A community of heirs is legally created for the distribution of the estate, as follows from the regulatory content of § 2032 BGB. Distribution of the estate among the community of heirs often goes hand-in-hand with large-scale disputes. In this instance, distribution means that the assets of a majority of the community of heirs’ members are distributed, and the community or company is then dissolved. It is also legally determined in § 2042 BGB that every co-heir may, in principle, request that distribution take place at any time. The distribution of the community of heirs takes place according to § 705 BGB, natural distribution. In factual terms, this means that each co-heir, with the consent of the others, can choose items from the estate themselves until the estate is divided up. In reality, this factual distribution does not often work in practice. It becomes even more difficult to distribute the estate if the childhood home or company needs to be sold. The Ultima Ratio can, however, be a claim for distribution of the estate, through which a co-heir may force the distribution by means of legal action. This approach necessarily involves additional costs and our experts will advise you on whether this is the right option for your personal situation.

6. Estate apportionment

In addition to the distribution of the estate or the sale of shares in the inheritance, there is another way to dissolve a community of heirs – apportionment. This course of action is not explicitly regulated in law in the succession rules, but has developed from the case-law of the supreme court from the appropriate application of §§ 1935, 2094, 2095, and 738 BGB. In this way, a co-heir can withdraw from the community of heirs and his share is used to increase the share of the other heirs in equal proportions. The co-heir who is is withdrawing is then entitled to compensation from the other members of the community of heirs, § 738, para 1 BGB. The parties can jointly set the amount of this compensation and it is possible for two or more people in a community of heirs to do this. The great advantage for the parties concerned is that the inheritance dispute is settled out of court.

Contact

As experts in consultation and representation in inheritance and succession disputes, we are ready to work with you. Get in touch!

Austria

There is barely any other legal event that has such a high conflict potential as succession.

The parties assert their claims with particular resolve and quite often a substantial dispute can arise over items of little value. Whether this is intentional or not, in every case a legally clean and rapid solution is beneficial in the interests of those involved. Our experts on inheritance and succession disputes can draw up appropriate and well thought out solutions for you that will contribute to the optimum balance of all interests.

1. Status of the heirs

The question of who is the overall rightful heir may lead to some initial clashes. This might be because the will is invalid or inconclusive, or because family relationships are complicated, such as with patchwork families, children born out of wedlock or adopted children. Sometimes, even an inheritance contract can raise questions that require clarification. Our will dispute lawyers can assist with an overall view of all parties and can analyse the respective positions within the succession.

2. Disputes in the community of heirs

In Austria, § 531 AGBG (Austrian Civil Code) defines the “embodiment of the rights and liabilities of a deceased” as his estate. Under current law, this estate can only be transferred to the so-called heir through probate, which is an individual sovereign act on completion of the probate proceedings and the submission of a declaration of inheritance regarding the property of the beneficiary. The Act therefore also regulates inheritance rights, universal succession and the corresponding distribution of the estate. However, ambiguities can arise, such as from the necessary disposal of accounts, the organisation of the funeral or the need to continue activities or business. All of these questions must be resolved by a group of randomly connected, sometimes very different personalities. This is where we recommend consulting lawyers who, in addition to technical skills, can also employ tact and discretion in directing the community of heirs to achieve the best balance of interests and ideal solutions.

3. Disputes over the estate

A dispute may also give rise to the question of what actually falls under the estate. In addition, questions regarding who has access to the house or the company, or who is responsible for protecting the estate, can often be unclear. It may also be the case that the heirs do not agree with the final dispositions of the testator, particularly in respect of high-value items in the estate. In these cases, a neutral advisor is the best option. They can analyse the chance of success and the cost of such a dispute, and can resolve them in the best interest of the parties, either outside of court or through the judicial process. Our will dispute lawyers have extensive experience and expertise in this field.

4. Sale of a portion of inheritance

One of the simplest solutions for an inheritance dispute is the sale of the share in the inheritance in accordance with § 828 ABGB. Under Austrian law, the community of heirs are co-owners with fractional shares (§ 825 et seq.) ABGB), so that each co-heir is a co-owner of the estate as per his inheritance share. Therefore, the authority to sell his share in accordance with § 829, 361 ABGB does not refer to the share in the inheritance, but the sharing co-ownership of the individual object. The seller therefore terminates his position as heir and withdraws from the conflict. Our lawyers specialised in tax and inheritance law can provide advice regarding the details of an inheritance sale and the associated tax implications.

5. Distribution of inheritance

The distribution of the estate among the members of the community of heirs requires the consent of all members concerned for every single item and can therefore lead to significant differences of opinion. By law, each co-heir can request that distribution takes place. In practice, this factual distribution does not often work. It becomes even more difficult to distribute the estate if the childhood home or company needs to be sold. The Ultima Ratio can, however, be a claim for distribution of the estate, through which a co-heir may force the distribution by means of legal action. This approach necessarily involves additional costs and our experts from the Viehbach law firm will advise you on whether this is the right option for your personal situation.

Contact

As experts in consultation and representation in inheritance and succession disputes, we are ready to work with you in Austria. Get in touch with our law firm in Vienna!

Mag. Florian Proxauf

Lawyer

email: f.proxauf@viehbacher.com

Dr. Lothar Stix

LL.M., LL.M., Lawyer

email: wien@viehbacher.com

Liechtenstein

When it comes to inheritance, there are many tasks for the heirs to carry out. In addition to registering the death, there are also legal and practical challenges. Especially in issues of the estate and inheritance, few people think rationally. Because of the emotional involvement of those concerned, misunderstandings and disagreements can lead to significant conflict.

Our inheritance & probate law lawyers can advise you, regardless of whether you want to assert a claim for inheritance or you have become involved in an inheritance dispute. Due to the cross-border nature of the Viehbacher law firm, we can provide you with comprehensive and competent advice, even if the succession has an international element.

1. The probate process

In Germany (as an example) inheritance transfers to the heirs upon the death of the testator, whereas in the Principality of Liechtenstein a judicial probate process is carried out, pursuant to article 143 et seq. of the Non-Contentious Proceedings Act (AussStrG).

The probate process is divided into the preliminary proceedings, article 143 to article 155 AussStrG, and the probate procedure itself, article 166 to article 181 AussStrG. During the preliminary proceedings, firstly the death is officially recorded, inventories of or investigations on the estate and potential heirs are carried out, and the succession is secured.

Following the preliminary proceedings, the probate process can then be undertaken. In accordance with article 153 AussStrG, this is waived if the estate has no intrinsic value or does not exceed the value of CHF 8,000.00. However, upon the application of any interested party, the probate process can be carried out.

If there is intrinsic value to the estate, the probate process will be undertaken. Within this context, if declarations of inheritance are submitted, it is also conceivable for there to be discussions about the respective inheritance law or the determination of the inheritance law. Only when all of the issues have been resolved can there be a so-called heir, pursuant to article 177 AussStrG.

While in other jurisdictions certificates of inheritance need to be granted for proof of status of heirship, this is decided in Lichtenstein by means of an order. This is, in particular, because the probate proceedings constitute a judicial proceeding.

2. Status of the heirs

The starting point for validation of an inheritance claim is an effective status of heirship. This is checked and determined by the Princely Court of Justice [Fürstliches Landgericht] within the framework of probate proceedings. Irrespective of whether you are making or defending inheritance claims, there must first be a clarification of who has become the rightful heir. What appears to be initially straightforward, can in fact be very difficult. The will of the deceased may be ineffective or allow for multiple interpretations of the actual last will. The transformation of the “family” institution, whether this refers to patchwork families, born out of wedlock or adoptive children, can complicate any determination of the status of heirship. In addition, the testator may have provided for specific circumstances through a contract of inheritance. It is essential under these circumstances to have an overall view of the people and parties involved. Only once this has been established can your definite position within the succession be determined and dealt with accordingly. Because these are, after all, legal proceedings, it is strongly recommended that you receive expert advice on the approach to be taken.

3. Disputes in the community of heirs

Pursuant to § 531 AGBG (Austrian Civil Code) the estate is defined as the “embodiment of the rights and liabilities of a deceased”. The right to take the entire estate or possession of a particular part thereof is named as the law of succession in § 532 ABGB. In accordance with § 532 paragraph 3 ABGB, this becomes the inheritance belonging to those who have the right to inherit. In particular where there are several beneficiaries that form a so-called community of heirs, the seeds of conflict have often already been sown. There is an inevitable passage of time between the time of death and the granting of probate, in which the estate is legally secured. Access is not immediately given to the beneficiaries, yet there may be certain necessary financial transactions such as funeral costs, which are initially borne by the beneficiaries. The succession process can bring together people with different ideas and views. In addition, although in a best-case scenario the community of heirs trusts each other and acts in the best interests of their fellow members, in reality this seldom happens. This is where lawyers are asked to be consultants, as they have both the empathetic skills and the technical expertise in the field of inheritance law to guide the various members of a community of heirs safely through the emotionally difficult time they face. Our experts at the Viehbacher law firm can provide you with comprehensive advice so that you can face any decisions sensibly and have them securely documented.

4. Disputes over the estate

Disputes within the community of heirs are often based on a dispute over the succession or similar. In this way, any person is entitled under article 165 AussStrG to request that an inventory is drawn up. In accordance with article 166 AussStrG, the inventory is a complete record of the estate, thus including all physical and intangible assets of the deceased along with their value at the point of death. Although article 167 AussStrG lays down some valuation principles, these do not provide the necessary clarity. Quite often members of a community of heirs will place too high a value on objects, as they combine both an ideal and material value.

In such situations, it is important to consult a neutral advisor. Good solutions can be drawn up when emotion plays no role and factual issues are at the heart of the matter. Our experts specialise in solving disputes in your favour out of court. Should a settlement out of court not be possible, then naturally our lawyers will also be by your side through any court proceedings.

5. Apportionment and distribution of the estate

The nature of things is that a community of heirs is only created for a limited period of time before apportionment and distribution must take place. Because this is linked to the distribution of assets, members of the community of heirs quite often end up involved in major disputes. Thus, the factual division of the estate is quite often not possible in practice and cannot be implemented. It becomes even more difficult to distribute the estate when, under certain circumstances, the childhood home or family business needs to be sold in order for the inheritance to be distributed. If there is no other way forward, a distribution of the estate can be brought about under the context of legal proceedings. It is evident, however, that such an approach will also attract significant additional costs. Our experts at Viehbacher lawyers and tax consultants will gladly explain the advantages and disadvantages of such a course of action to you.

6. International matters

One peculiarity stems from the small size of the Principality of Liechtenstein, where Liechtenstein citizens will live and work outside of the Principality. Likewise, it is also conceivable that a foreigner might die in the Principality of Liechtenstein. In all these cases, the question of relevant law is of importance. According to article 29 para. 1 of the International Private Law Act (IPRG) the nationality of the deceased must first be considered. However, the Princely Court of Justice is responsible for the probate process, thus insofar as no other contrary express regulation is in the will or testamentary contract, Liechtenstein law be applied. Due to the EU inheritance law, succession and the law of succession to be applied is determined according to the law of the country in which the deceased had their last habitual residence. However, the testator can also choose the applicable law. This means that, in the event that a person from Liechtenstein dies, and this person was last resident in Italy, then Italian law will be applied in the absence of a contrary provision. The Viehbacher law firm is internationally oriented and is represented in all relevant jurisdictions: Europe, Switzerland and Liechtenstein. Even if there are cross-border inheritance disputes, you will also be able to benefit from our knowledge and expertise.

Contact

Do you have any more questions? Our experts in Liechtenstein are looking forward to hearing from you!

Dr. Christian Presoly

Lawyer

email: c.presoly@viehbacher.com

Lic. iur. Daniel R. Tschikof

LL.M., Lawyer

email: d.tschikof@viehbacher.com

Switzerland

The Swiss theologian Joseph Vital Kopp said that, when a person inherits, owners of whole rows of houses will still argue over a cup. In many cases, heirs and relatives are unable to avoid a dispute – whether they like it or not. Would you like to make an inheritance claim or dispute an inheritance? Our will dispute lawyers in Switzerland will provide everything you need.

1. Status of the heirs

In many cases it is actually unclear who is the rightful beneficiary. There are many different reasons for this. The testamentary disposition may be invalid or allow multiple interpretations of what is written. Equally, the status of heirship can be complicated by family relationships, such as patchwork families, children born out of wedlock or adopted children. In addition, the existence of a testamentary contract can also give rise to specific circumstances. What is initially necessary is an overall view of the parties and an analysis of their specific positions within the succession.

2. Disputes in the community of heirs

Article 560 et seq. of the Swiss Civil Code (ZGB) stipulates that, subject to statutory exceptions, any claims, property, limited material rights and property of the testator is transferred to the heirs. Where the law of succession is applied, assets are transferred jointly by way of a so-called universal succession to the heir or heirs. In particular, where there are several beneficiaries, the seeds of conflict can often already be sown. This is the so-called community of heirs, where all persons are equally entitled with regard to the estate. Disposal of the accounts needs to be undertaken, the funeral organised and, at the same time, any transactions or activities must be carried out. Succession brings together people from very different walks of life into one legal community, but this does not mean a trusting and human community is automatically created. In fact, it is quite the opposite. In this instance our lawyers – who are both professional experts in the field of inheritance disputes and well-versed in tact and discretion – are asked to lead individual parties of the community of heirs through this difficult time, while also making any necessary decisions and securely documenting them.

3. Disputes over the estate

In addition to disputes within a community of heirs, it is possible to dispute the estate itself. What does the estate of the deceased actually consist of? Who has access to the house or to the company? How can the estate be secured, what repairs need to be made at this time? It also quite often happens that heirs do not agree with the final dispositions of the testator. This is especially true if they relate specifically to very valuable assets in the estate. In such situations, it is crucial that you have the support of a consultant who is not personally involved, in order that you can achieve the best solution. Our lawyers specialise in solving disputes in your favour. This can take place out of court or through an action claiming the rights of an heir. When it comes to the crunch, our lawyers will evaluate the chances of success of the claim and the estimated costs.

4. Sale of a portion of the inheritance

In order to exclude or end a dispute over inheritance, the sale of inheritance shares could be the best option. With the sale of an individual portion of the estate to a co-heir or non-beneficiary, the heir renounces his claim in accordance with article 635 of the Swiss Civil Code. The purchase is carried out according to the general regulations of the Swiss Code of Obligations; however, the written form is required for the corresponding sale contract. A notarial act is not required according to federal case law, even where freehold land is being sold. With the completion of the sale, the status of heirship for those co-heirs that are making the sale is not ended, but is formally maintained. If a share is sold to a third party, they do not acquire a status of heirship and have no right to participate in the distribution, only a claim on the portion being assigned to them by the beneficiary from the distribution. Our lawyers are specialised in tax law and can provide advice regarding the details of the sale of a portion of inheritance and any associated tax implications.

5. Apportionment and distribution of the estate

A community of heirs is legally created for apportionment and distribution of the estate, as follows from article 602 et seq. of the Swiss Civil Code. Distribution between the community of heirs often goes hand-in-hand with large-scale disputes. In this instance, distribution means the assets of a majority of the community of heirs’ members are distributed, and the community or company is then dissolved. It is also laid down in law in article 602 ZGB that any co-heir may request the distribution of the inheritance and can therefore, in principle, end the community of heirs at any time. The distribution of the community of heirs takes place pursuant to article 610 et seq. ZGB. In factual terms, this means that each co-heir, with the consent of the others, can choose items from the estate themselves until the estate is divided up. In reality, this factual distribution does not often work in practice. It becomes even more difficult to distribute the estate if the childhood home or company needs to be sold. The Ultima Ratio can, however, be a claim for distribution of the estate, through which a co-heir may force the distribution by means of legal action. This approach necessarily involves additional costs and our experts will advise you on whether this is the right option for your personal situation.

6. Testamentary contracts and renunciation of inheritance

In Switzerland, the testator can conclude an inheritance agreement or compensation in lieu of future inheritance with the heir. When distributing the estate, the waiving heir is thus not taken into consideration. There are various ways in which a testator can divide his estate after his death. Our lawyers and tax consultants will be glad to advise you from a taxation point of view on the peculiarities of the Swiss law of succession.

Contact

As Swiss experts in consultation and representation in inheritance and succession disputes, we are ready to work with you. Get in touch!

Peter Fröhlich

Lawyer and Certified Tax Expert

email: p.froehlich@viehbacher.com

Italy

Our information in the English language concerning consultation and representation in inheritance or estate disputes in Italy is currently still being developed. We kindly ask for your understanding. Therefore, please do not hesitate to contact us directly with your queries and concerns. For over ten years now, we have been supporting clients in five different countries with their inheritance or estate disputes. With us you are always competently advised and well represented. We look forward to receiving your message or call!