How to Challenge a Registered Will

Inheritance law: who can see the will?

he will is an important document that regulates the estate. It is advisable to store it in an official location so that it is actually there in the event of inheritance. A central register of wills has existed at the Federal Chamber of Notaries for this purpose since 2012. It is an electronically managed register in which these documents are recorded.

If a person dies, it can be checked whether a will has been deposited. But is it possible to see the will deposited as a private person? And what about personally kept wills? Here are the answers to the most important questions about the subject of "viewing wills".

As a relative, can I see the will stored in the will register?

It happens again and again: The potential heir Stefan wonders to what extent he is in his uncle's will. Maybe he gets nothing or only the compulsory portion? If he knew whether the real estate in Munich would actually become his property or not, he could plan his life much better. Should he get the property, he would of course be willing to take care of the childless Uncle Ernst. Otherwise not.

Cases like this are not uncommon, although morally dubious. The Central Register of Wills knows only one answer to inquiries like this: You reject the request for information. It is only possible for notaries and courts to receive information from this point. This is regulated in § 78 f BNotO (Federal Notary Code). If the writer of the will is still alive, even courts and notaries can only obtain information from the office if the testator agrees.

And what about the testator himself?

It can happen that the testator would like to ask the Central Register of Wills what the content of his last will was. This may seem strange, but it does happen occasionally. It mainly happens when the testator has lost track of his last will. In some cases, his inheritance declarations are no longer available to him. In rare cases he is unsure whether and which wills he has already drawn up. Exactly for these cases comes the general right to information According to Art. 15 GDPR (General Data Protection Regulation): "The person concerned has the right to request confirmation from the person responsible as to whether personal data concerning them are being processed."

This passage enables the testator himself or through his lawyer to obtain information from the Central Register of Wills. In this way, he can check whether and which documents relating to inheritance law are stored in this register.

What happens in the event of inheritance?

Let's come back to our example case with Uncle Ernst. The Lord has now passed away. Regardless of whether the will was kept in the official register or a privately kept will is submitted by relatives to the court: It follows the Opening a will according to § 348 FamFG by the competent probate court. Undoubtedly, the term opening a will sounds a bit antiquated, but it is still apt. It means that all concerned are informed of the contents of the will. However, this is not as spectacular as in old Agatha Christie films. Instead, the heirs usually find out about the contents of the will by post. You will find one in the envelope Opening Minutes as well as a copy of the will. But sometimes it also happens that the probate court does not postal way goes. Then the probate court invites all legal heirs and any other heirs according to § 345 FamFG to an opening date. This is regulated in Section 348 (2) FamFG. During the appointment, those involved first hear orally what is in the will. Should one of those present request it, the will will be presented to him and the others.

Note: Occasionally it happens that someone has doubts as to whether the will is actually from the testator. If this is the case, the first step is to have the probate court show you the will. This is how the signature can be verified.

If the parties were present when the will is opened, they will not receive a written statement on the content of the will. This only happens when they were not present.

Wills that have already been opened: Inspection possible with restrictions

As soon as a will is opened, anyone can look at this document if he is credibly express legal interest can. Section 357 FamFG says this very clearly. However, there are exceptions. The interested party may only see the last will to the extent that legitimate interests of all other parties involved or even third parties can be preserved. There is a regulation for this in accordance with Section 13 (2) FamFG. An example illustrates this determination: Stefan from our example case was “only” given a sum of money by his uncle. He doesn't want to believe this because he was hoping for his uncle's real estate. He asks to see the will. The probate court grants this, but it is only allowed to do so Legacy orders read. The probate court does not have to disclose further will orders that do not directly concern him. A copy of all injunction orders that affect one's own person may be requested. It is prepared directly by the probate court's office at an extra cost. This is regulated in Section 13 (3) of the FamFG.

Note: And what about a joint will from spouses or registered partners? They contain regulations on subsequent heirs. If these can be separated from the current succession, the probate court does not provide any information about who the subsequent heirs are and what has been decreed. This is noted in Section 349 of the FamFG.

Can someone see my private will?

The answer to this seems simple and logical, but it keeps popping up. It is all the more important to emphasize that nobody has to show his will to anyone. Children, grandchildren, neighbors, friends etc. are allowed to push and beg, however much they do there is never a dutyto reveal this sensitive document to someone. Also, no bank or other institution has the right to inspect the will.

Practice also shows that people would do well not to reveal their will to anyone. Why? It often offers the potential for controversy. Perhaps it is not understood why one is given more attention than the other. Nevertheless, it can be advisable to discuss with your close relatives in advance what, for example, should be done with real estate. This is difficult to divide, which is why regulations before death are often recommended. If a house or apartment is sold by a real estate agent in Munich before death, the sales proceeds can be better divided among the heirs. In some cases, a higher sum of money can be divided among the heirs even before the inheritance occurs in order to save on inheritance tax. The individual case must be examined in more detail in order to make the perfect decision.

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Photo by Sebastian Hemetsberger on Unsplash

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Rainer Fischer & team of authors

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