A handwritten will can be written at any time by oneself. For a notarized will, an appointment must first be made with a notary and there are immediate costs involved. The decision for or against a notarized will should be carefully considered. This article will give you an overview of the most important advantages and disadvantages of a notarized will compared to a handwritten will.
Quick Summary
- A notarized will provides more legal certainty than a handwritten will.
- As a rule, a notarized will does not incur higher costs than a handwritten will (at least if real estate is also bequeathed).
- A notarized will reduces the bureaucratic burden for the heirs in the event of inheritance.
- The notarized will requires that the deceased person confides in a notary and speaks about his or her wishes regarding the estate.
- A handwritten will is easier to change or revoke, as there is no need for a new appointment at a notary’s office.
Germany has a statutory succession law. This means that a person’s estate is divided among the heirs in accordance with the provisions of the German Civil Code. If testators wish to make arrangements that deviate from the statutory order of succession, they can either write a handwritten will (§2247 BGB) or have a notarized will (§2232 BGB) drawn up. As a handwritten will is quick and easy to draw up by oneself, many testators opt for a handwritten will. Some testators are afraid that a notarized will is too expensive, bureaucratic and time-consuming. Additionaly, it is often said that every will must be notarized. In this article, we will examine these notions’ truth.
Advantages of a notarized will
A notarial will is drawn up with the assistance of a notary. The work of a notary involves more than notarizing the will with a stamp. Rather, a notary also provides expert legal advice and establishes the testator’s legal capacity. Testators basically have two options when drawing up a notarized will: Either the notary draws up the will following a consultation appointment. Or the notary reviews a will drawn up by the testator themselves from a formal point of view. Costs incur for the notary’s work. The amount of the fee is regulated by the Court and Notary Costs Act and is based on the estate’s value.
Establishing identity and legal capacity
A notary always carries out a so-called identity check. According to § 10 BeurkG, testators must present their ID when a notarial will is drawn up. This ensures that the authenticity and authorship of a will is guaranteed.
In addition, notaries are obliged under Section 28 BeurkG to determine the testator’s legal capacity – i.e. the ability to make a binding declaration of intent. The declaration of legal capacity is included in the notarized will. This reduces the risk of disputes in the event of inheritance.
Expert legal advice for more legal certainty
German inheritance law is extremely complex. Even if there are numerous standard versions and templates for last wills on the Internet, these can rarely be unconditionally applied to your own estate situation. For legal laypersons, it is usually only possible to assess to a limited extent what is important when drafting a will. Unclear formulations can lead to legal disputes between the surviving dependants in the event of an inheritance. In the worst case, formal errors invalide the entire will, so that the statutory succession applies. This is precisely what testators who write a will want to prevent.
One of the notaries’ tasks is to research the testator’s wishes and draft the will in a way that ensures that the last will and testament is enforced and that the heirs are protected in the event of inheritance. This is because legal laypersons may use formulations that have a different meaning in “legalese” than is generally thought.
Example
Legal laypersons often refer to the surviving partner as the “provisional heir” before the children. In most cases, this means that the surviving partner should inherit in full first and the children only inherit once the second parent has passed away. However, the term “provisional heir” means something else: a temporary pre-heir. As a rule, provisional heirs do not benefit directly from the assets in the estate. Rather, the provisional heirs are usually the primary administrators of the assets from the inheritance.
A notarized will usually replaces the certificate of inheritance
If a property or company is inherited, the heirs must have a change made in the land register or commercial register. If assets were inherited on the basis of intestate succession or a handwritten will, the heirs require a certificate of inheritance. Issuing a certificate of inheritance involves costs and often means a delay before the heirs can have the change to the register made.
Should the inheritance primarily consist of a property, the heirs must pay the costs of issuing the certificate of inheritance from their own assets. Depending on the property’s value, this may present a significant financial burden for the heirs.
Notarized will is placed in official safekeeping
Once the notarization has been completed, the notarized will is kept in an envelope that is securely closed and sealed with the notary’s seal. The notary’s office then registers the will in the Central Register of Wills and the will is placed in the official custody of the local court or probate court. Every notary is obliged under § 34 BeurkG to place notarial wills in official safekeeping. The last will’s official safekeeping ensures that the it will be found in the event of inheritance. In addition, the will is protected against loss and manipulation.
Handwritten wills can also be deposited and registered with the local court / probate court. This happens automatically with a notarized will.
Example
A testator draws up a handwritten will and keeps it at home instead of depositing it with the local court. However, as the will is located among other documents that the testator considers unimportant, it cannot be found. As a result, intestate succession applies and the last will and testament cannot be implemented as the testator would have wished.
A notarized will can also be drawn up by minors and those unable to write
The handwritten will must be handwritten and legible in its entirety. In addition, it be written by hand by the testator(s). As a rule, a handwritten will cannot be written by a third, authorized person and can only be written by the testator and can only be signed by the testator. If a person is unable to write, in most cases a notarized will is the only way to regulate the last will in deviation from the legal order of succession.
Unlike a handwritten will, a notarized will can be drawn up for young people aged 16 and over. The corresponding regulations can be found in §§ 2229 and 2233 BGB.
Financial security through a notarized will
Costs incur directly when a will is drawn up by a notary. The extent of these costs depends on the value of the estate. The preparation of a handwritten will is free of charge, provided no legal advice is sought beforehand. However, in the case of a notarized will, there are no costs for issuing a certificate of inheritance, as this is not required for a notarized will. If parents make separate arrangements for the estate of the first to die and the last to live, the costs for issuing a certificate of inheritance are incurred twice in the case of a handwritten will.
Disadvantages of a notarized will
The effort involved in drawing up a notarized will cannot be denied: while a handwritten will can be drawn up at any time and in any place, a notary’s office must be chosen and an appointment made. In addition, the notary’s appointment must be coordinated with the testator’s other appointments.
Another disadvantage of a notarial will is that the testator must confide in the notary about his or her personal circumstances. This also includes any questions as to which points and to what extent the testator wishes to deviate from the legal order of succession. However, the notarial confidentiality is the basis of trusting cooperation.
Anyone who has a testament drawn up by a notary must take into account that this will result in direct costs. On the other hand, the testator saves the heirs costs in the event of inheritance that would be incurred, for example, by issuing a certificate of inheritance.
Questions about handwritten wills and notarial wills
Many questions arise before a will is drawn up. Here you will find the most frequently asked questions and answers when it comes to the distinction between a notarial and a handwritten will.
Is a handwritten will valid without a notary?
The German Civil Code lists a handwritten will as one of the options if testators wish to make arrangements for their estate that deviate from the statutory order of succession. A handwritten will can therefore be drawn up without a notary or other legal advice. For a handwritten will to be valid without a notary, it must be completely handwritten and signed.
Is a notarial will really more expensive than a handwritten will?
As a general rule, there are no costs for drawing up a handwritten will. The costs for drawing up a notarial will, on the other hand, regularly depend on the value of the assets that are to be bequeathed. As German inheritance law is very complex and difficult to understand for legal laypersons, legal support is recommended when drawing up a will. As an alternative to a notary, this can also be provided by a specialist lawyer. They will then also charge a fee.
Note that a certificate of inheritance is not required if there is a notarial will. If there is only a handwritten will, a certificate of inheritance must be requested if real estate is inherited. The costs incurred for this are based on the value of the property.
Free last will template: What to consider when writing a will without a notary?
Free sample wills are suitable for standard inheritance cases. Complex circumstances are generally only inadequately represented by free sample wills. Instead of starting from a template, with DeinAdieu you can use the Online Will Assistant to create a personalized valid will. The complete will must be handwritten, dated and signed.