Underage heirs
In principle, problems or special features arise in the legal assessment of a situation when minors are involved. This also applies to inheritance law. In principle, minors can legally inherit in the same way as adults, but due to the special protection of minors, there are some special legal features that must be taken into account in inheritance law processes.
When can a child inherit according to statutory inheritance law?
According to Section 1923 (2), the capacity to inherit begins when the child has already been conceived at the time of inheritance and therefore before birth.
What restrictions does the underage heir experience?
Due to his or her lack of or limited legal capacity, the minor heir is subject to restrictions in asset management. In other words:
As a rule, minors cannot dispose of the inherited assets until their 18th birthday.
In legal transactions, the child is extensively protected by §§ 104 ff. BGB (German Civil Code) and is restricted in its actions. At the same time, in accordance with Section 1626 (1) sentence 2 BGB, it falls within the scope of parental care to look after the minor's assets on their behalf.
Can parents freely dispose of the assets inherited by the child?
In principle, parents are able to dispose of their child's assets. However, it is not possible to speak of free disposal, as the law provides for numerous restrictions on disposal.
The principle of property custody resulting from Section 1626 (1) sentence 2 BGB already restricts the parents in the disposal of the child's assets in the sense that the child's welfare must always take centre stage. Parents are not permitted to spend the child's assets for their own purposes and interests.
Within the framework of Section 1649 (2) BGB, parents have the option, within very narrow limits, to use the income from the assets that is not required for the proper management of the assets and for the maintenance of the child for their own maintenance and for the maintenance of the child's underage siblings, insofar as this is equitable, taking into account the assets and employment situation of the parties involved.
What legal restrictions does the law impose with regard to the custody of assets?
Firstly, it should be noted that the welfare of the child must always take centre stage in parental custody.
If the child has inherited money, the parents must invest the money for the child in accordance with Section 1642 in line with the principles of sound asset management. This means that the security of the chosen form of investment must take precedence over excessive expectations of returns. If the parents do not have the relevant knowledge, they must seek professional help.
However, Section 1642 of the German Civil Code (BGB) stipulates that the parents must keep the monetary contributions from the inheritance that the parents will need for expenses in the foreseeable future.
Furthermore, parents are subject to a gift ban in accordance with Section 1641 BGB. This means that parents may not make gifts on behalf of the child. Exceptions to this are gifts that fulfil a moral duty or are in keeping with decency. This includes, for example, gifts to ensure family peace or free gifts to siblings to enable them to study or receive other training.
Furthermore, the inherited assets are protected by the fact that legal transactions through which the minor does not merely gain a legal advantage require authorisation (Section 107 BGB). Depending on the type of legal transaction, authorisation from the family court may be necessary.
When do family courts intervene?
Authorisation from the family court is required in particular for disposals of real estate.
If the child acquires assets by reason of death, the parents must record the assets subject to their administration in accordance with Section 1640 Paragraph 1 Sentence 1 of the German Civil Code (BGB), provide the list with an assurance of accuracy and completeness and submit it to the family court. This list of assets serves on the one hand to protect the integrity of the child's assets and on the other hand to make it easier to monitor the management of the assets.
If the parents do not fulfil this obligation, the family court can force them to do so using coercive measures in accordance with Section 35 FamFG. In addition, the court can order the competent authority, a civil servant or notary to record the list in accordance with Section 1640 (3) BGB. In addition, the custody of assets can also be withdrawn in accordance with Section 1666 BGB.