Ask a lawyer on the topic of Social law

Parental maintenance ("indirect form")

February 14, 2012 | 100,00 EUR | answered by Jan Wilking

Dear Sir or Madam,

One of my parents has been in need of care for a longer period of time. As the need for care continues to increase, the time is foreseeable when my parents will no longer be able to bear the associated costs themselves. Over 20 years ago, I had worked to close the gaps in care that were already apparent at that time through private insurance. Unfortunately, my parents are resistant to any kind of advice.

My parents have a close relationship with representatives of the local government, who are also responsible for the local social welfare office. Both sides have already agreed in advance that in the event of this situation, an existing self-used property should not be sold, but rather burdened with a mortgage. The social welfare office would then take over the uncovered care costs in the form of a loan (advance). A value for the property and accordingly for the possible amount of the mortgage or loan has been discussed, which is far above the realistically achievable sale value of the property. Additionally, the house is almost unsellable due to its condition and significant changes in terms of location and environment.

Now the question arises to what extent I can be held liable for such a loan. If it were a "simple" loan, the answer would be largely clear to me. In the event of inheritance, a corresponding inheritance can be rejected. However, in this case, these are costs that have arisen from care services and the associated question of parental support obligations.

Assuming that the social welfare office (the local government) and my parents agree to settle future care costs as described above through a mortgage or loan, who is then responsible? Who sells the house and repays the loan if the parents are no longer able to do so due to their age or have already passed away?

Option 1:
The full responsibility lies with the social welfare office, which has made the agreement with my parents and is likely also registered in the land register. The house becomes the property of the social welfare office, which is then responsible for the sale. If the sale proceeds are not sufficient to repay the loan, the difference must be covered by the social welfare office.

Option 2:
The house becomes the property of the social welfare office, which is responsible for the sale. If the sale proceeds are not sufficient, the social welfare office will come back to me and demand the difference as part of parental support, with the actual amount of support obligation to be calculated according to common criteria (assets, income, protected assets, etc.).

Option 3:
The social welfare office finally approaches me and asks me to repay the loan as part of parental support obligations. It is up to me to sell the house. If the sale proceeds are not sufficient, I must cover the difference as part of parental support, with the actual amount of support obligation to be calculated according to common criteria (assets, income, protected assets, etc.).

It is important for me to have an assessment from your side as to which of

Jan Wilking

Dear inquirer,

I am happy to answer your inquiry taking into account the facts you have provided and your contribution as follows:

A land charge is the encumbrance of a property in such a way that a specific amount of money is to be paid from the property to the person in whose favor the registration is made (§ 1191 BGB). It is a real burden and detached from its legal basis. In the event of inheritance, the property along with the encumbrance is inherited by the heirs. Since the property itself is liable, the encumbrance remains on the property. The social welfare office will not acquire ownership through the land charge itself, as the property is only liable. Only in the event that no payment is made despite maturity, the land charge could be realized through forced sale.

If the parent is unable to repay the loan payments, the social welfare office would likely first satisfy itself through a forced sale of the property. Once this is exhausted, the social welfare office would turn to the children for parental support, subject to the usual principles (ability to pay, protected assets, etc.).

If the parent passes away before a forced sale, the (encumbered) ownership of the property and the outstanding loan liability would pass to the heirs through universal succession according to §§ 1922, 1967 BGB. However, the respective heir can prevent this by renouncing the inheritance within a certain deadline and form, thereby retroactively eliminating the inheritance (§§ 1942 Abs. 1, 1944 et seq. BGB, see also LSG North Rhine-Westphalia • Decision of November 22, 2007 • L 20 B 18/07 SO).

I hope this provides you with a helpful initial orientation. If you have any uncertainties, please use the free follow-up function.

Please note that without knowledge of all circumstances, I cannot provide a definitive recommendation in this initial consultation. If you require a conclusive assessment of the situation, I recommend contacting a lawyer to discuss the matter in detail with access to all relevant documents.

Best regards