Death and Taxes

Advantages of making your will
Death and taxes are certainties. But while the reality of tax hits home on pay day, death is a bit more nebulous. It’s no wonder so few of us have bothered to make a will.

Making a will ensures that, when you die, your money, property and possessions go to people that you choose. Yet oddly, having worked and sacrificed for a lifetime, fewer than a third of us seem bothered by who benefits when we’re gone. Research by insurers shows just a percentage of us have a will. Taking time off work or shelling out for a babysitter to chat to a solicitor about death isn’t top of anyone’s list. But this may be one appointment, at least for your family’s sake, that you can’t afford to miss. A will is not just about who gets what. With the right advice, you can ensure that your legacy brings the maximum benefit to those you love, avoids tax traps while minimising the possibility of dispute.

So, what’s the first stepf? If the thought of visiting a solicitor’s office makes you queasy, you might research yourself in the web. After taking basic details and a family outline, next is an inventory of assets – your bank accounts, pensions, shares, credit union accounts, prize bonds in a drawer. Do you have a property? Is there a mortgage on it? Is there mortgage protection to make sure it will be an unencumbered [without debt] asset?” It’s really so that, if anything happened in the morning, who needs to be written to, and where the assets might be.

Your next step will be to establish your wishes. For a couple there are basically two options: something happens to both of them or only one of them. If there are any children who are minors, custody is also a matter to be settled. While you and your sister may have an unspoken agreement, your husband may have other ideas. Making a will can act as a catalyst for having those difficult but important conversations. Within the EU statutes stipulate the law of the person’s last residence to be applicable with no regard to where the deceased was born. This may lead to surprises, if a couple has more than one nationality.

If you don’t have a will when you die, a position known as “the rule of intestacy”, the Law (Bürgerliches Gesetzbuch §§ 1922 ff. in Germany, Succession Act in Ireland) comes into effect. In the case of those married without a will, the deceased’s spouse gets the whole estate where there are no children. If there are children, the spouse gets two-thirds with any children sharing the remaining third. If you are not married and having no children, your estate will pass to your parents, if alive or to siblings or more remote relations. The Law has many provisions for your nearest, whether they are your dearest or not.

Some people might be separated, but they haven’t got a legal separation in place. If you don’t have a will, that’s a major problem. Because if you are not legally separated, then you are legally married and your ex gets two-thirds of everything regardless of what your wishes might have been. Cohabiting couples need to be particularly wary. Bound together by kids, a home and a Netflix account, you might assume your partner automatically gets everything, but that’s not the case. If you are in a cohabiting relationship and you die without a will, your partner has no right to any share of the estate no matter how long you have been together, apart from what was held jointly.

If the single person’s parent is living, and you have made no will, then that parent will receive everything. If there is neither a child nor a parent, the estate goes to the state, which might be of your interest, if there are debts of the estate. Where there is a family business in play, professional tax advice is as well a must as legal advice in order to to keep up your business and thereby preserve its value.

For parents of a child with disabilities you might wish to secure the child’s living without cutting off state aid. Here a trust comes in.

There might also be someone who you wish to remember you by a gift. Here a legacy comes in which entitles the legatee to claim a thing or a sum of money from your heirs. Appointing the right executor might be the key, organised and sufficiently robust to withstand questions from beneficiaries is advised, he or she can be a lawyer or any other person, who had been legally advised before and has your confidence.

For any further questions that may arise, you can contact:
Rechtsanwalt Dr. Markus Wessel, Schlüterstraße 39, 10629 Berlin, mw@ra-dr-wessel.de, Telefon: 030 887 07 777