Intestate succession applies when the deceased has not left a valid last will, whether in the form of a will, a joint will or an inheritance contract. Exceptionally, intestate succession may also occur in the event of a disposition of property upon death if the disposition does not definitively or exhaustively regulate the succession or if the testator orders intestate succession within the disposition.
The statutory order of succession follows a system that takes into account the testator's family relationships. In this system, relatives are assigned to specific orders, and heirs from a previous order exclude the heirs of a subsequent order. The first order includes the testator's direct descendants, i.e. his children and grandchildren. The representation principle applies here, according to which a descendant excludes his or her own descendants from the succession. If there are no descendants at the time of the inheritance, their descendants take their place.
If there are no heirs of the first order, for example because the testator died childless, the heirs of the second order come into consideration. These are the testator's parents and their descendants, i.e. siblings, nephews and nieces. Here, too, the intestate succession and representation principle applies, so that parents represent their own descendants. If there are no parents at the time of the inheritance, their descendants enter into the statutory succession and become heirs of the second order.
If there are no heirs of the second order either, the heirs of the third order come into play. These include the grandparents of the deceased and their descendants, i.e. uncles, aunts and cousins. Here, too, the intestate succession and representation principles apply.
If it is not possible to determine a living relative despite extensive investigations, the state inherits the deceased's assets in the last instance.
The influence of the spouse on the statutory order of succession depends on the matrimonial property regime under which the spouses have lived together. In Germany, most spouses live in the statutory matrimonial property regime of the community of accrued gains, unless they have concluded a marriage contract or have not drawn up one at all. In the community of accrued gains, the spouse inherits 1/2 in addition to heirs of the first order and 3/4 in addition to heirs of the second or third order. The remaining share goes to the respective heirs.
In order to best meet the testator's individual wishes and to avoid possible inheritance disputes within the family, it is recommended to make a disposition of property upon death. This allows the testator to specify exactly who should receive their assets and to what extent. This can be done by means of a will or an inheritance contract. In this way, the last will of the deceased can be taken into account in the best possible way, and the inheritance is distributed according to their wishes.
The statements represent initial information that was current for the law applicable in Germany at the time of initial publication. The legal situation may have changed since then. Furthermore, the information provided cannot replace individual advice on a specific matter. Please contact us for this purpose.