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24. August 2021 | Pre-inheritance and post-inheritance: inheritance tax treatment § 6 ErbStG (this contribution)

You can regulate your succession through pre-inheritance and post-inheritance. This is possible by first determining the so-called pre-inheritance. From this then inherits the inheritance by time. Both the acquisition of the inheritance and that of the previous inheritance is an acquisition by loss of inheritance within the meaning of § 3 I No. 1 EStG. Consequently, the estate is initially subject to inheritance tax at the expense of the previous inheritance (§ 20 IV ErbStG) and subsequently at the expense of the subsequent inheritance. The case of pre-inheritance and post-inheritance is regulated in § 6 ErbStG.

According to § 2100 BGB, the decedent can use an heir by disposition of death in such a way that he becomes an inheritor only if another, the so-called pre-heir, has first become heir. If no date has been set for the subsequent inheritance, the inheritance of the subsequent inheritance arises with the death of the previous heir. Nevertheless, the date can also be made dependent on other conditions (for example, completion of the 18th year of life). If this event can no longer occur, then the preliminary inheritance becomes full heir.

The successor has a right of entitlement to the property to be transferred to him. This he can inherit and transfer, unless the testator has determined otherwise. According to § 2130 BGB, the pre-inheritance is obliged, after the occurrence of the subsequent inheritance, to give the inheritance to the subsequent heir in the condition in which it would result in a proper administration continued until the issue. Consequently, the pre-inheritance is significantly limited in its power of disposal. On the other hand, he can fully dispose of the part of his assets. In civil law, the inheritance becomes the heir of the deceased and not of the previous heir.

Especially for real estate assets, pre-inheritance and post-inheritance are often chosen. The inheritance is recorded in the land register. Then the acquisition of the inheritance is secured. In the case of movable assets, however, there is often a mixture of assets in the case of pre-inheritance. Therefore, pre-inheritance and post-inheritance are not so common in these economic goods. Often the regulations on the legacy can be more meaningful.

In the legacy, only the actual heir becomes the heir of the decedent, but not the legatee. The person to whom the legacy belongs is to be considered a legatee and not an heir. He only receives a legal claim against the heir with the case of the death of the deceased. On another condition, however, the legacy does not depend. The legacy is taxable according to § 3 I No. 1 Case 2 ErbStG even without its assertion. Therefore, the rules on pre- and post-inheritance do not apply. Rather, the successor as a true heir enters the civil status of the deceased so-called universal succession. Another way to regulate the succession is the advance legacy. As a result, the legatee receives a debt claim against the heir, but this is only due when the heir has died. This legacy may be limited to individual items. These objects then belong to the normal inheritance and not to an inheritance.

The Berlin Testament according to § 2269 BGB is an interpretive form of the will. Two spouses establish each other as full heirs when one of the two spouses dies and determine that then, for example, their children inherit. The final heir will then receive the entire estate of both spouses in the event of the death of the last deceased spouse. In the case of pre- and post-inheritance, on the other hand, the post-inheritance does not have to cover the entire estate of the last deceased heir. In addition, the first testator can determine the successor alone. In the Berlin Testament, however, the spouses must jointly regulate who becomes the final heir. The Berlin Testament is usually unfavorable, because the children do not become heirs after the death of the first deceased parent and therefore lose their allowance. Consequently, there is an accumulation of two different assets by way of an inheritance. In order to prevent this, legacies are often granted, the fulfillment of which is conditioned on the death of the last dying person.

For inheritance tax purposes, the pre-inheritance is fictitiously treated as the full heir of the deceased in accordance with § 6 I ErbStG, although it is considerably limited in its power of disposal under civil law. If the subsequent acquisition does not occur due to the loss of inheritance of the previous heir, the previous acquisition shall be deemed to be a loss of inheritance conditional upon dissolution. The subsequent acquisition, however, is considered a suspensively conditioned seizure.

Upon the occurrence of the subsequent inheritance by the death of the previous heir, the inheritance shall be taxable as having originated from the previous heir. This fiction is limited by § 6 II S. 2 ff. Certificates The tax on the subsequent acquisition arises according to § 9 I No. 1 lit. h ErbStG with the subsequent inheritance case.

It is possible to reject posterity. This is possible if, in addition to the property of the deceased, the property of the previous heir also passes. This allows you to arrange the subsequent inheritance case in such a way that the application of § 6 II S.4, 5 ErbStG can be avoided with regard to the severance payment. Then the progression reservation does not apply. In addition, not only an allowance can then be granted.

In the case of pre-inheritance and post-inheritance, the successor may submit an application to the effect that the taxation is based on the relationship of the successor to the deceased in accordance with § 6 II S. 2 ErbStG. Whether you as a successor should make this application depends on the comparison of the tax in the ratio of the successor to the deceased to the ratio of the previous heir to the successor. In particular, the application is useful for different tax brackets and allowances. Furthermore, there should also be factual tax exemptions, which apply to the tax class for example § 13 para. 1 no. 1, no. 6, no. 10 ErbStG. In addition, earlier donations of the pre-inheritance to the post-inheritances within the 10-year period § 14 ErbStG must be taken into account. But not the earlier gifts of the testator in favor of the successor.

It is also conceivable that the inheritance acquires its own assets of the pre-inheritance alongside the pre-inheritance and post-inheritance. In this case, both assets form a unit for inheritance tax purposes. Consequently, there is a single acquisition. In this case, it is initially conceivable that the application is made pursuant to § 6 II S. 2 ErbStG and therefore the relationship of the successor to the decedent is taxed. However, it appears problematic that according to § 6 II S. 4 ErbStG the maximum allowance of the successor can be granted to the deceased. Consequently, the entire allowance can be deducted in respect of the property provided by the deceased. If there is anything left of the allowance, this can be deducted from the property of the previous heir. Furthermore, according to § 6 II S. 5 ErbStG, the tax is calculated according to the tax rate applicable to the entire acquisition.