Private insolvency and inheritance claim
January 16, 2010 | 20,00 EUR | answered by Dr. Dr. Danjel-Philippe Newerla
Dear Sir or Madam,
In December 2008, my father passed away. He was married to his second wife ("Wife2") until his death.
I received a message from the probate court stating that there was a handwritten will in which his Wife2, my two siblings, and I (3 children from his first marriage) were mentioned; however, the will was not clearly interpretable in terms of the deceased's precise intentions.
To avoid complicating the inheritance matter, all beneficiaries agreed to seek a mutually agreeable solution.
For this reason, my siblings and I decided to accept an offer from his Wife2 and "sell" our potential inheritance claims (mainly concerning my father's half share in the shared apartment with Wife2) to her.
The "sale" of the inheritance claims will be contractually arranged in such a way that we, the 3 children, agree in writing with Wife2 regarding a joint interpretation of the will as "The deceased's intention is to be interpreted as wanting his wife to be the sole heir"; therefore, we, the children, will waive our inheritance claims in exchange for payment through the interpretation agreement in relation to the will.
One of my siblings is currently in the final phase of a private insolvency, which will end in February 2010.
My questions are:
Is it the obligation of my sibling to pay half of the compensation amount to the creditors, even if the above-mentioned "sale" (contract signing and payment of the compensation amount) of his inheritance claims takes place in March 2010, after the end of the private insolvency?
Or is he obligated to pay even after the end of the private insolvency, regardless of the timing of the contract signing and actual payment flow, since our father's death and thus the moment of the emergence of the inheritance claim underlying the above-mentioned contract and compensation payment fell during the insolvency period?
How should the time points "death of the deceased", "emergence of the inheritance claim", "contract signing", "receipt of the compensation payment", and "end of the private insolvency" be legally evaluated in terms of the obligation to pay half of the compensation amount due to private insolvency?
(Current Status: The date for the contract signing is still pending. The contract documents are prepared and ready for signing. Inheritance tax aspects are not relevant due to the low amount of the compensation payment.)
I thank you very much for your efforts!
Best regards
Dear Seeker,
Thank you very much for your inquiry!
Taking into account your information, I am happy to summarize and answer the questions you have asked as follows:
Regarding 1.) Is it the obligation of my sibling to give half of the compensation amount received to the creditors, even if the "sale" (contract signing and payment of the compensation amount) of his inheritance claims took place in March 2010, after the end of the private insolvency?
If your sibling does not renounce the inheritance (based on your description, I assume this is not intended), not only is there an obligation but a legal duty to hand over half of the inheritance for realization to the trustee/insolvency administrator.
During private insolvency, 50% of an inheritance must be handed over to the trustee, § 295 para. 1 no. 2 InsO.
It is not about the timing of the sale but about the time of the inheritance, that is, the time of the death of the deceased.
Regarding 2.) Or is he, regardless of the timing of the contract signing and actual payment, obligated to hand over the compensation even after the end of the private insolvency, since the death of our father and thus the time of the creation of the inheritance claim underlying the aforementioned contract and compensation payment fell into the period of good conduct?
Yes, you are completely right. I have already answered this above. Ultimately, it comes down to the time of the deceased's death.
If this falls within the insolvency, generally half must be handed over to the trustee for realization.
Regarding 3.) How are the time points "death of the deceased", "creation of the inheritance claim", "contract signing", "receipt of the compensation payment", and "end of the private insolvency" to be legally evaluated in relation to the obligation to hand over half of the payment amount due to private insolvency?
As mentioned earlier, it depends on the creation of the inheritance claim, that is, the time of inheritance (death of the deceased). There is still the possibility to renounce the inheritance. However, in that case, the remaining compulsory portion may be subject to attachment.
I hope my explanations have been helpful to you. You are welcome to contact me for further questions through this portal or via my email address.
I would like to point out the following: The legal advice I have provided is based solely on the information you have provided. My response is only an initial legal assessment of the situation and cannot replace a comprehensive evaluation of the circumstances. Adding or omitting relevant information could lead to a completely different legal assessment.
I wish you a pleasant Saturday afternoon and a relaxing weekend!
Yours sincerely
Dipl.-Jur. Danjel-Philippe Newerla, Attorney-at-law
Heilsbergerstr. 16
27580 Bremerhaven
kanzlei.newerla@web.de
Tel. 0471/3088132
Fax.0471/57774
