Legal situation& The problem of the ability of a community of heirs to act
In most inheritance cases, a decedent leaves several people who have inheritance rights, with or without a will. This then creates a community of heirs, in which the heirs become joint owners of the estate according to German inheritance law. In this case, however, a community of heirs is not intended to be permanent, but is considered an interim solution until the estate is distributed as part of a settlement of the inheritance and the community of heirs can thus be dissolved. The legal basis for this can be found in §§2032 to 2041 BGB.
The right of disposal of the co-heirs is regulated in § 2033 BGB, which provides that each co-heir of the community of heirs can dispose of his share of the inheritance from a will or the legal succession, but has no access to individual items or assets of the estate . For this reason, it is also much more difficult to administer inheritances individually in a community of heirs, and in conjunction with § 2038 of the German Civil Code (BGB), this means that the co-heirs can only administer the estate jointly and also require a certificate of inheritance for this purpose. Here the German inheritance law designates this also as community of joint heirs.
Ability to act through a certificate of inheritance power of attorney
So the ability of a community of heirs to act is particularly limited because it requires the consent of all co-heirs for any decision to be made . This circumstance per se has a lot of potential for stress and disputes among co-heirs if there is no agreement on how to administer the estate from a will. This is why it is often difficult to carry out legal transactions in practice, even if a certificate of inheritance is available. However, German inheritance law provides a possible solution here, as it provides for the possibility of a power of attorney to make provisions, which can significantly improve the ability of a community of heirs to act.
Through a power of attorney for heirs, a power of representation is granted to an experienced co-heir or even a third person, who can then carry out the legal transactions for the estate. It is important to know that even the closest relatives of a decedent in a community of heirs are not otherwise authorized to do so. It is possible to use this power of attorney z. B. grant power of attorney for a specific legal transaction if, for example. B. sell a property from the estate. In this respect, such a power of attorney should always be certified by a notary so that it can also be used for z. B. recognized by banks.
The power of attorney as an efficient option for action
In the event that no power of attorney has been granted, z. B. in the case of a real estate sale all heirs agree to the legal transaction and all sign the contract. This involves a great deal of effort, particularly in the case of large communities of heirs, and in many cases is hardly feasible if z. B. Heirs living abroad. However, the authorization of a co-heir naturally presupposes that the entire community of heirs has confidence in him, since he, as the representative of the community of heirs, makes important decisions that affect all co-heirs.
In general, it therefore makes sense to appoint a proxy for the community of heirs, as the members of the community of heirs may only dispose of the estate jointly until the inheritance is divided. Thereby are also z. B. Withdrawals or transfers from the testator’s bank accounts are only possible on presentation of the certificate of inheritance.
However, it usually takes some time before a certificate of inheritance is issued. By means of a power of attorney, the heirs can immediately entrust the authorized representative with the handling of all necessary legal transactions and the latter is then also immediately capable of acting after the death of the testator and can z. B. immediately pay the funeral expenses from the estate by presenting the power of attorney.