22 Mar The drawing up of a will by the notary * 

Posted at 16:54h in Wohnungskauf by

You can use a will to reg­u­late your prop­er­ty suc­ces­sion. You can make your will in pri­vate writ­ing or before a notary. If you draw up a will pri­vate­ly by hand and put it in a draw­er, this would be a pri­vate­ly writ­ten will. You can make a notary will by mak­ing a state­ment to a notary or by deliv­er­ing an open or sealed writ­ten state­ment to the notary (here­inafter “Notary Will”). If you make a Notary Will, you will have to pay notary fees, but you will be on the safe side if your will gets imple­ment­ed after you deceased.

The Notary Will has various advantages over the private will:

  1. Notary Will goes along with a pri­or legal advice and instruc­tion from the notary. Unlike a Notary Will, a pri­vate­ly writ­ten will often proves to be con­tra­dic­to­ry in con­tent and prac­ti­cal­ly unen­force­able, which in turn can lead to dis­putes between the sur­viv­ing dependents.
  2. In the case of a Notary Will, there is no risk of sub­se­quent fal­si­fi­ca­tion or sup­pres­sion of your will by sur­viv­ing depen­dents, since the Notary Will is tak­en into offi­cial cus­tody and the notary also trans­mits the cus­tody data on the Notary Will to the Cen­tral Reg­is­ter of Wills.
  3. In the case of a Notary Will, the notary who draws up the Notary Will first estab­lish­es the testator’s tes­ta­men­tary capac­i­ty. In this way, the Notary Will is bet­ter pro­tect­ed against the accu­sa­tion, not infre­quent­ly made by sur­vivors, that the tes­ta­tor was no longer capa­ble of under­stand­ing the mean­ing of his tes­ta­men­tary dis­po­si­tions when he drew up the Notary Will with the notary.
  4. The notary will have greater pro­ba­tive val­ue in the event of a dis­pute after your death because it is a pub­lic document.
  5. If real estate is includ­ed in the estate, the Notary Will, togeth­er with the pro­bate court’s record of its open­ing, can serve as proof of suc­ces­sion towards the land reg­istry. In con­trast, a pri­vate will requires the sub­mis­sion of a sep­a­rate cer­tifi­cate of inher­i­tance. The Notary Will there­fore saves time. In addi­tion, the appli­ca­tion for a sep­a­rate cer­tifi­cate of inher­i­tance must also be declared before a notary and reg­u­lar­ly trig­gers fees that are just as high as those for the will.
  6. With the Notary Will you choose the safest way to record your last will.

Who can make a Notary Will?

In prin­ci­ple, a Notary Will can be drawn up by any­one who has reached the age of 16 and is capa­ble of under­stand­ing the mean­ing of his or her tes­ta­men­tary dis­po­si­tions. Tes­ta­tors who are hear­ing or speech impaired can also make a notar­i­al will.

How is a notary will usually drawn up?

If you instruct me to draw up a Notary Will with you, I will first ask you about your fam­i­ly, estate, and your inten­tions. In doing so, I will advise you in such a way that your ideas about the dis­tri­b­u­tion or where­abouts of your estate are imple­ment­ed in the best pos­si­ble way in the Notary Will. And I will instruct you about the mean­ing and scope of your tes­ta­men­tary dis­po­si­tions in the Notary Will. This also includes inform­ing you about the statu­to­ry rights of indi­vid­ual sur­vivors to a com­pul­so­ry share of the estate, which exist under the law despite the Notary Will. In addi­tion, I will ask you whether you have already made tes­ta­men­tary dis­po­si­tions pri­or to the Notary Will. It should be not­ed that ear­li­er dis­po­si­tions are only annulled by a lat­er Notary Will if there are con­tra­dic­tions between the dis­po­si­tions. It is there­fore advis­able to express­ly revoke ear­li­er wills in the Notary Will and to reg­u­late all desired dis­po­si­tions exclu­sive­ly in the Notary Will.
Once the con­tent of the Notary Will has been clar­i­fied, I pre­pare a cor­re­spond­ing draft Notary Will, on the con­tent and word­ing of which I advise and instruct you again. Once the con­tent of the Notary Will has been final­ly deter­mined, I will read the Notary Will to you. The involve­ment of fur­ther wit­ness­es is gen­er­al­ly not required for the Notary Will. With your and my sig­na­ture under the pro­to­col, your Notary Will is estab­lished and valid.
The notary fees for the Notary Will are reg­u­lat­ed by law and are deter­mined on the basis of the val­ue of your estate. The val­ue is there­fore record­ed in the Notary Will.

Alternative: The Notary Will by handing over an open document to the notary 

Instead, you can also make the Notary Will by hand­ing over an open (i.e., read­able by me) doc­u­ment with the dec­la­ra­tion that it con­tains your last will. This text for the Notary Will can be writ­ten in any con­ceiv­able form (e.g., hand­writ­ing, com­put­er print­out, short­hand, braille). The writ­ing does not have to be writ­ten by your­self. If you wish to make a Notary Will in this way, I, as notary, will pre­pare a notar­i­al record of your appli­ca­tion and the hand­ing over of the writ­ing, attach the writ­ing hand­ed over to me to my record for the Notary Will and read the record (not your writ­ing) to you. Even with such a Notary Will, how­ev­er, I will dis­cuss the con­tents of your writ­ing with you and instruct you about it.
A Notary Will by deliv­ery of an open writ­ing is suit­able for above all for exten­sive or a last will writ­ten by anoth­er lawyer and/or notary or if your last will is writ­ten in a for­eign lan­guage, because as a notary I do not have to be able to read the writ­ing nec­es­sar­i­ly for the estab­lish­ment of the Notary Will.

Alternative: The Notary Will by handing over a closed writing to the notary

Final­ly, you can also hand me a closed writ­ing for your Notary Will and declare that it con­tains your last will. In this case, I also draw up a notar­i­al record of your request and the hand­ing over of the doc­u­ment, which I then read to you and to which I then attach the closed doc­u­ment. How­ev­er, as a notary, I am not autho­rized to open the closed writ­ing when I draw up the Notary Will. In the case of such a notar­i­al will, I nat­u­ral­ly have no duty to advise and instruct you about the con­tents of your notar­i­al will if I do not know the con­tents. The advan­tages of the Notary Will by deliv­ery of a closed writ­ing are obvi­ous: You have the advan­tages of a Notary Will (how­ev­er with­out con­sul­ta­tion and instruc­tion) with simul­ta­ne­ous absolute pro­tec­tion of your pri­va­cy as in the case of the estab­lish­ment of a pri­vate­ly writ­ten will.

Advice is important

In the prepa­ra­tion of your Notary Will, con­sul­ta­tion is an impor­tant part of my work. In Ger­many, there are detailed legal pro­vi­sions for the suc­ces­sion of prop­er­ty after death, which also reg­u­late, for exam­ple, who must receive at least a legal min­i­mum share. I will be hap­py to advise you on this.

* Please note: The information on this page has been prepared without taking into account your personal situation, intentions and needs. The explanations are only intended to provide you with an initial orientation. The legal situation is simplified and incomplete.  Therefore, the explanations do not constitute legal advice.
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