The following types of testamentary dispositions are recognized in Germany:
Individual Will (“Einzeltestament” or “Testament”)
Individual wills may be set up in the following two ways:
a. Entirely handwritten (“Handschriftliches Testament” or “Privatschriftliches Testament”)
The will has to be entirely handwritten by the testator and signed and dated by him/her. Witnesses are not required. Subsequent modifications render the will invalid.
b. Notarized Will (“Notarielles Testament” or “öffentliches Testament”)
The will may be drafted and authenticated by a notary, who narrates the dispositions of the testator. A notarized will is not handwritten; it is signed by both the testator and the notary. Witnesses are not required.
The testator may also hand over to the notary an open or closed envelope that contains the testator’s will. That testament does not have to be handwritten, either. Witnesses are not required.
Notarized testaments are held in the custody of the local court at the residence of the testator until the death of the testator.
2. Joint Will for Married Couples (“Ehegattentestament” or “Gemeinschaftliches Testament”, also know as “Berliner Testament”)
Under German law married couples or registered homosexual partners may set up a joint will.
A joint will serves two purposes:
- To avoid the “forced heirship” of the descendants at the death of the first spouse and thus ensure that the surviving spouse can maintain his/her standard of living. A joint will by a married couple is the only way the mandatory minimum share due to the children or other descendants can be avoided.
- To restrict the surviving spouse’s testamentary freedom by making the joint dispositions binding. This is often used as a means to allow the surviving spouse to enjoy the estate of the first-to-die spouse, while ensuring that those assets will still ultimately go to the beneficiaries chosen by the first-to-die spouse.
Spouses may modify the joint will only together.
A joint will cannot usually be unilaterally changed or cancelled, regardless of before or after the death of the first-to die spouse.
During the lifetime of both spouses it is possible to cancel the joint will through a notarized statement to that effect. (Remember that notaries on continental Europe are trained lawyers.)
In many cases the spouses want to allow the surviving spouse to have the flexibility to give assets to future caregivers or other persons close to them. In this case the surviving spouse is given the freedom to modify the joint will after the death of the surviving spouse.
3. Testamentary Contract (“Erbvertrag)
Two or more persons may make testamentary dispositions in form of a contract. This contract may later be modified only by mutual consent.
A testamentary contract has to be notarized. It cannot be modified after the death of the first spouse.