22 Mar The drawing up of a will by the notary *
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:
- 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.
- 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.
- 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.
- The notary will have greater probative value in the event of a dispute after your death because it is a public document.
- 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.
- 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.