Apartment dissolution by authorized representative during lifetime
August 3, 2016 | 40,00 EUR | answered by Jan Wilking
A widow has two children and several grandchildren and great-grandchildren. Due to advancing age, mobility impairments, and dementia following a stroke, she could no longer stay in her own apartment and had to be admitted to a nursing home for long-term care. A recovery and return to her own apartment is not expected.
Both children were previously authorized by her to jointly dispose of household goods, real estate, and other assets in her favor.
In addition, there is a several years old, sealed, handwritten, non-notarial will whose content is unknown to the children. It is suspected that there are some dispositions, including in favor of the grandchildren.
Now the situation arises that - in accordance with the existing power of attorney - her former household in her condominium is to be dissolved in her name and rented out to third parties.
It would be of interest to know the content of the will in order to be able to consider presumed dispositions regarding household goods and other movable assets in the apartment.
Is the family allowed to open the will together for this purpose?
If yes, is a notary necessary for this?
If not, what would happen after her passing if it turns out that a disposition would be void? Would compensation need to be offered to the beneficiary?
Dear seeker of advice,
Thank you for your inquiry, which I would like to answer taking into account the facts you have provided and your commitment as follows:
In principle, nobody is allowed to open the will of the testator before their passing without their consent. If the widow is unable to provide consent due to incapacity, it should be examined whether one of the children has already been sufficiently authorized or if a legal guardian should be appointed. The authorized person or guardian would then potentially have the right to access the will. However, since premature opening of the will could potentially invalidate it, the process should be coordinated beforehand with a lawyer and notary specialized in inheritance law.
Regarding the household dissolution carried out with the widow's authorization, the following generally applies: If an item is sold that is the subject of a testamentary bequest, the beneficiary generally cannot demand the item or compensation after the death of the testator. This is because at the time of succession, the item is no longer part of the estate, and the bequest is rendered invalid according to § 2169 para. 1 of the German Civil Code (see, for example, OLG Rostock · decision of April 16, 2009 · case no. 3 W 9/09). The only exception would be if a specific acquisition bequest in accordance with § 2170 of the German Civil Code was explicitly established in the will.
Best regards
