Spouses and children are entitled to the compulsory portion of an estate even if the testator fails to account for them in his or her will. That being said, the compulsory portion has to be claimed.
In the absence of a will or contract of inheritance, the rules of intestate succession apply. These may not be consistent with the testator’s wishes for various reasons. With the help of a testamentary disposition, the testator can personally determine how his or her estate will be distributed and also designate heirs who would not have been entitled to inherit pursuant to the rules of intestate succession. Notwithstanding this, the testator’s spouse or close relatives, e.g. his or her own children, are still entitled to the statutory compulsory portion under such circumstances.
Those entitled to the compulsory portion include the testator’s spouse, civil partner, children and potentially his or her parents as well. Completely disinheriting someone entitled to the compulsory portion is only possible under strict conditions.
However, valuating the compulsory portion can prove challenging. While it is true that the compulsory portion amounts to half of the statutory share in the estate, calculating this can be problematic because it is necessary to establish the value of the estate. We at the commercial law firm GRP Rainer Rechtsanwälte note that this issue frequently gives rise to disputes between those entitled to inherit according to the will and those entitled to the compulsory portion. Determining the value of the testator’s cash assets is unproblematic, whereas this is more difficult in the case of real estate and other assets, whose value it may only be possible to ascertain through an expert assessment.
In order to valuate the compulsory portion, the value of the estate needs to be ascertained. The persons entitled to the compulsory portion therefore have a right to information relating to the value of the estate vis-à-vis the heirs as well as the right to an estate inventory. On the other hand, the heirs are also entitled to demand information from those entitled to the compulsory portion concerning whether they received any gifts or contributions from the testator during the latter’s lifetime that count towards the inheritance.
Even if there is a valid will or contract of inheritance, it is still possible for disputes to emerge among the heirs when calculating the compulsory portion. Lawyers who are experienced in the field of succession law can offer advice and ensure that the testator’s testamentary dispositions are implemented in a manner that is complaint with the relevant legal provisions.