⏳ Disclaiming an inheritance: 6 weeks
In brief
You do not have to accept an inheritance. You can disclaim it (ausschlagen). You are then treated as if you were not an heir. This can make sense if the estate is overindebted.
The deadline is six weeks. It starts when you learn of the death and of the ground for your inheriting. If your inheritance is based on a will, the deadline starts only when the probate court notifies you of the will.
You declare the disclaimer to the probate court. Either by record at the court or in publicly certified form.
Six months apply only if the deceased's last residence was exclusively abroad or you are abroad when the deadline starts.
Step by step
- Note the dateWhen did you learn of the death and of the ground for your inheriting?
- Roughly check the estateGo through accounts and papers. Do the debts outweigh the assets?
- Make the declarationAt the probate court by record, or with a publicly certified declaration, for example through a notary.
- Consider those next in lineIf you disclaim, others usually inherit, for example your children. Deadlines run for them too.
Deadlines
- After the deadline has expired or after acceptance, disclaiming is no longer possible (§ 1943 BGB).
- Anyone who declares themselves heir or applies for a certificate of inheritance may thereby have expressed acceptance. Do not act hastily if you want to disclaim.
- Authorised representatives need a publicly certified power of attorney (§ 1945 BGB).
- A parent who disclaims for a child must observe further rules. This is not covered here.
In depth · legal basis, figures and practice – for advisers and professionals
Deadline
§ 1944 BGB: disclaiming is possible only within six weeks. The deadline starts at the time the heir learns of the succession and of the ground for inheriting. If the heir is called by a disposition upon death, the deadline does not start before the probate court announces the disposition. It is six months if the testator's last residence was only abroad (that is, not also in Germany) or if the heir is abroad when the deadline starts. Under § 1944 Abs. 2 Satz 3 BGB, moreover, only §§ 206 and 210 BGB apply accordingly (suspension in cases of force majeure, suspension of expiry where full legal capacity is lacking), not the limitation rules in general.
Form
§ 1945 BGB: disclaiming is done by declaration to the probate court. It must be made by record of the probate court or in publicly certified form. A representative needs a publicly certified power of attorney, which is attached to the declaration or submitted within the disclaiming period.
Effect and end of the option
Under § 1943 BGB the heir can no longer disclaim once they have accepted or the deadline has passed. When the deadline expires, the inheritance is deemed accepted.
Contesting
§ 1954 BGB: acceptance or disclaimer must be contested within six weeks. In the case of duress, the deadline starts when the coercive situation ends, otherwise on knowledge of the ground for contesting. Six months apply where a foreign element is involved. After 30 years, contesting is excluded.
Compulsory-portion heirs with restrictions
§ 2306 Abs. 1 BGB: if a person entitled to a compulsory portion is restricted or burdened by subsequent heirship, executorship, a partition order, a legacy or a condition, they can disclaim and claim the compulsory portion. The disclaiming period starts only on knowledge of the restriction or burden.
Costs
Fees follow the Court and Notary Costs Act (GNotKG). § 103 Abs. 1 GNotKG applies to a notarised disclaimer; the decisive value is the value of the estate minus the testator's debts.
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