Probate & Trust Law Section Conference Manual ... - Minnesota CLE

Germany, for example, in Section 2303 of the German Civil Code (Bürgerliches Gesetzbuch) sets out the
following forced heirship rights, called Pflichtteil (Pflicht‐ meaning duty, obligatory, or compulsory and teilmeaning
piece or portion).
Persons entitled to a compulsory share of the estate;
(1) If a descendant of the testator is excluded from succession by disposition in the will he may
demand his compulsory share from the heir. The compulsory share is one‐half of the value of
the share of the inheritance on intestacy.
(2) The parents and spouse of the testator have the same right if they have been excluded from
succession by disposition in the will. The provision of section 1371 (equalization of marital
estate) remains unaffected.
In these jurisdictions, forced heirship results in an ability for a wider spectrum of disinherited relatives
to take against the will than we are used to, which can even result in a decrease of the amount in the
estate going to a spouse, even spouses who are also a parent to the disinherited child.
With legal realities of comity, diverse jurisdictional tests, and practical needs to effectively transfer real
property abroad, the possibility of the application of forced heirship should be evaluated by an estate
planner. The client should be made aware of the issue, evaluation of the likelihood of its application in
the particular fact pattern of the client should be made, and mitigation of its effects should be explored.
This may require including council from the foreign jurisdiction in the planning.
6. You cannot inherit debt.
Also, scarily, untrue.
Common law jurisdictions, like Minnesota, treat an estate almost as if it is a separate person. Debts of
the estate are dealt with during the probate administration. Heirs and devisees get the good of what’s
left over. If there isn’t enough to satisfy creditors, then the creditors walk away. We are used to heirs
and devisees having no duty to the estate’s creditors. However, this view is not held by many other
countries.
Some countries, usually civil law jurisdictions, operate under the theory of “universal succession” of the
decedent’s estate to the heirs.
“universal succession”
Black’s Law Definition: In the civil law, succession to the entire estate of another, living or dead, though
generally the latter, importing succession to the entire property of the predecessor as a juridical
entirety, that is, to all his active as well as passive legal relations.
Instead of the estate being a separate person, the estate, in its entirety, constructively goes to the heirs
and devisees. The legal construction removes the gap in ownership, removing the need for the estate to
be constructively treated as a separate entity. For purposes of debts, not only does the decedent inherit
the good of the estate upon decedent’s death, they inherit the bad of decedent’s debts.
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