58th UIA Congress, Florence

29 October – 2 November 2014

Succession Planning

Andreas Otto KühneRechtsanwaltFachanwalt für Erbrecht

Bonn München

Rheinwerkallee 6 Pettenkoferstraße 3753227 Bonn 80336 München

Tel.: +49 228 945 945-0 Tel.: +49 89 2441 688-0Fax: +49 228 945 945-55 Fax: +49 89 2441 688-88

info@bkl-law.de www.bkl-law.de

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Succession (1)

What happens if our man takes residence in Germany and dies without putting in place any kind of legal arrangements? • 1. Question: Is German law applicable?

- The answer depends on the nationality of the deceasedo Art. 25 of the Introductory Act to the Civil Code (EGBGB):

(1) Succession is governed by the law of the country of which the deceased was a national at the time of his death.

(2) As to immovables located within the country, the testator may, in the form of a testamentary disposition, choose German

law.

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Succession (2)

1st Alternative: The deceased was German• German law is applicable, no matter where the inheritance

objects are located

• Some specifics of German inheritance law:- it provides a compulsory share for near relatives

(descendants, spouses and maybe the parents)- the proportional right to inheritance of spouses depends on

the matrimonial property regime- strict observance of the form of a last will- joint will made by spouses may have a binding effect on the

surviving spouse

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Succession (3)

2nd Alternative: The deceased is not German • German law (Art. 25 EGBGB) refers to the law of the

country of which the deceased was a national- 1st Alt.: The foreign law might itself refer to the law of the

country where the deceased had its last residency (e.g. the Spanish law); in case of such a renvoi (i.e. the foreign law refers back to German law) the German substantive provisions (i.e. German law of successions) shall applyo For example: The British law refers to the law of the last residency

of the deceased. If our young man was British and lived in Germany before he died, German law refers to British law which in turn refers to German law (as the law of the last residency). So the succession would be ruled by German law – according to German and British law as well.

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Succession (4)

2nd Alternative: The deceased is not German • German law (Art. 25 EGBGB) refers to the law of the

country of which the deceased was a national- 2nd Alt.: The foreign law refers to the nationality, too, i.e. the

foreign law is applicable o For example: The Spanish law refers to the nationality. If our young

man was Spanish and lived in Germany before he died, the succession would be ruled by Spanish law. Reason: German law refers to Spanish law which declares Spanish law for applicable. So the succession would be ruled by Spanish law – according to German and Spanish law as well.

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Succession (5)

2nd Alternative: The deceased is not German • German law (Art. 25 EGBGB) refers to the law of the

country of which the deceased was a national- 3rd Alt.: The foreign law differentiates between movables and

immovables different laws are applicable o For example: If our young man was French and happened to die in

Dresden, where he lived before he died, the German law would refer to French law. French law differs between immovables (which are subject to the law of the location) and movables (which are subject to the law of the last residency). In this case two different law systems apply on the succession: French law with regard to immovables which our young man owns in France and German law with regard to the movables he possesses in France and Germany.

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Succession (6)

Legal Situation off 17 August 2015• Regulation (EU) No 650/2012 of the European Parliament

and of the Council of 4 July 2012 on jurisdiction, applicable law, recognition and enforcement of decisions and acceptance and enforcement of authentic instruments in matters of succession and on the creation of a European Certificate of Succession

• Art. 21: Unless otherwise provided for in this regulation, the law applicable to the succession as a whole shall be the law of the State in which the deceased had his habitual residence at the time of death

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Succession (7)

Legal Situation off 17 August 2015• Choice of law will become more important:

• Art. 22 Regulation (EU) No 650/2012: A person may choose as the law to govern his succession as a whole the law of the State whose nationality he possesses at the time of making the choice or at the time of death. A person possessing multiple nationalities may choose the law of any of the States whose nationality he possesses at the time of making the choice or at the time of death.

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Taxation (1)

What happens if our man takes residence in Germany and dies without putting in place any kind of tax arrangements? • German inheritance tax law is applicable if the deceased

has a domicile or habitual residence in Germany- i.e. our young man would be subject to German inheritance

tax because of his domicile in Germany

• German inheritance tax law applies to the whole estate (no matter where it is located)

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Taxation (2)

Some Specifics of German Inheritance Tax law• Tax exempt amount for spouses is 500.000 €

• Tax exemption for the joint family home for spouses (and with further conditions for children, too)

• Tax exempt amount for children is 400.000 €, for grandchildren 200.000 €

• Tax rates rise – depending on the acquired amount of the estate – from 7% to 30% (for close relatives; for heirs that are not related tax rates rise up to 50%)

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Legal advice (1)

How can our young man and his family make the most of their situation - from a legal point of view and from a tax point of view?• Estate planning is important to

- choose the “most convenient” succession law if the law of one´s nationality offers a choice of law

- evade legal order of succession where this seems appropriate- maintain influence on the estate (by appointing an executor of

one´s will), esp. when minors are heirs- take advantage of tax exemptions (inheritance tax)

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Legal advice (2)

What would I suggest our young man?• Check matrimonial property regime and (e.g. in case of

separation of property) switch to community of surplus the surplus paid to the wife is taxfree; money is transferred to the younger wife and therefore reduces the estate (which means less inheritance tax)

• Use tax exemptions for spouses and children make a last will and appoint wife and children to heirs- As the children are minor our young man should appoint an executor

of his last will

• Restructuring of assets: Buy a family home and make a legacy in favor of his wife or make a donation inter vivos (both asset transfers are tax free)