Generally inheritances are handled within the framework of probate proceedings, which are usually conducted by the respective competent notary on behalf of the court. The probate procedure begins with the recording of the death, in which context the notary records information about the persons entitled to the inheritance and the existing assets and liabilities.
Heritages and beneficiaries of compulsory portions have different rights during the probate proceedings. For example, beneficiaries entitled to a compulsory portion have the right to request an appraisal of the estate and the drawing up of an inventory, to request information about gifts from the estate, heritages and gift recipients in connection with the addition of gifts, and to request information about the deceased’s assets from the estate or heritages. The heritages have the right to use, administer and represent the estate after the declaration of acceptance of the inheritance has been made. Upon request, the court commissioner shall issue an official confirmation of the power of representation.
The notary as court commissioner is also subject to further obligations, such as the safeguarding of the estate, if, for example, there is a risk of property being seized or the heritages or close relatives are not able or willing to take custody of the assets. Also, the court commissioner shall conduct those surveys to determine the assets belonging to the estate. If the court commissioner fails to fulfill his or her obligations, a corresponding application may be filed with the court, which is responsible for supervising the notary’s activities, to have the obligations fulfilled.
The heritage or heritages may make their declaration of acceptance of inheritance conditionally or unconditionally. Depending on this, the heritage is liable without limitation or only up to the amount of the assets of the estate. In the case of a conditional declaration of acceptance of the inheritance, it should be noted that this is in any case associated with a possibly cost-intensive inventory of the assets. In the case of conflicting declarations of acceptance of inheritance, for example if several persons declare themselves to be heritages of the entire estate, the court commissioner must first try to achieve an amicable solution. If this is not possible, then the court decides within the framework of probate proceedings and thus establishes the right of succession of the entitled persons and rejects the remaining declarations of succession.
The probate proceedings offer the possibility of dividing the assets available in the estate among the heritages within the framework of a so-called agreement on the division of the estate. In the absence of such an agreement, several heritages become co-owners of the bequeathed assets on a pro rata basis. The cancellation of such a co-ownership community may be sought on the basis of a partition action. The probate proceedings end with a court decision.