Legal heirs: Who inherits without a will and how much?

What is intestate succession – and when does it apply?

Intestate succession applies whenever a deceased person has not left a will or an inheritance contract. In this situation, the probate court or a court-appointed estate administrator identifies the legal heirs. They can then take all further steps to manage and distribute the estate.

The statutory inheritance share also forms the basis for the compulsory portion, which disinherited close relatives may be able to claim. The compulsory portion is always half of the statutory share of the inheritance.

Who qualifies as a legal heir?

Legal heirs are the blood relatives of the deceased, plus – in a special position – the spouse or registered civil partner. Relatives are grouped into different degrees of kinship depending on how closely they are related to the deceased (the “testator”). The following rule applies: heirs of a higher degree always exclude those of a lower degree from inheriting.

1. First-degree legal heirs: Direct descendants of the deceased – children, grandchildren and great-grandchildren

2. Second-degree legal heirs: Parents of the deceased and their descendants, e.g. siblings, nieces and nephews

3. Third-degree legal heirs: Grandparents of the deceased and their descendants, e.g. aunts, uncles, cousins

4. Fourth-degree legal heirs: Great-grandparents of the deceased and their descendants, e.g. great-aunts, great-uncles, second cousins

5. Fifth-degree legal heirs and more distant degrees: More distant ancestors of the deceased and their descendants

Special case: What role does the spouse play?

Spouses occupy a special position in intestate succession: they do not inherit as relatives of a specific degree, but alongside the legal heirs. The same applies for registered civil partners.

How large the spouse’s share of the estate is depends on the family situation:

• With children or grandchildren in a community of accrued gains (Zugewinngemeinschaft): The spouse inherits half of the estate, while the children share the remaining half equally.

• Without descendants, but with parents or siblings in a community of accrued gains: The spouse inherits three-quarters of the estate.

• With separation of property: Different rules apply, based on statutory inheritance law and the provisions of the marriage contract.

Who is excluded as a legal heir?

Anyone who has not set out their last wishes in writing risks leaving close companions without protection. Intestate succession has clear limits.

Unmarried partners do not inherit under statutory rules, regardless of how long the relationship has lasted. Without a will, they are neither entitled to inherit nor financially protected after the death of their partner.

Stepchildren and foster children are also not legal heirs. Adopted children, on the other hand, are treated in law like biological children and inherit accordingly.

If you want to protect people who are not considered legal heirs, you should make a will in good time.

How are inheritance shares calculated?

The inheritance share indicates what proportion of the estate each legal heir receives. The decisive factor here is the personal and family situation of the deceased at the time of death – for example, whether they were married, which marital property regime applied, and how they were related to the other heirs.

The following three examples show how this looks in practice:

Example 1 – Community of accrued gains with two childrenThe deceased was married (no marriage contract) and had two children. The spouse inherits ½, and each child inherits ¼.

Example 2 – Community of accrued gains, childless, with two siblingsThe deceased was married (no marriage contract), had no children, but had two siblings. The spouse inherits ¾, and each sibling inherits ⅛.

Example 3 – Separation of property with two childrenThe deceased had a marriage contract with separation of property and two children. Spouse and children each inherit ⅓.

How do legal heirs claim their inheritance?

As soon as you learn of the death of a relative and you belong to the group of legal heirs, you can apply for a certificate of inheritance (Erbschein) at the probate court. This certificate is required to gain access to bank accounts, insurance policies and other estate assets – including for enquiries at the land registry, for example in connection with inherited property.

If you are the sole heir, you manage the estate independently. You can close bank accounts, sell property or other assets and settle outstanding liabilities.

If there are several legal heirs, they form a community of heirs (Erbengemeinschaft). This group manages the estate jointly and must take all key decisions – from closing bank accounts to selling a property – unanimously. This is where conflicts often arise. In such cases, legal advice is advisable to protect your own interests.

Conclusion

Intestate succession applies whenever there is no will and no inheritance contract. In this situation, the probate court identifies the heirs. Only if there are no legal heirs, or if all heirs renounce the inheritance, does the estate ultimately pass to the state.

If you want to decide during your lifetime who inherits what, you should draw up a will. This allows you to state clearly which person receives which share of the estate – and who you wish to protect beyond that. If the estate includes property, you will find all key information in our guide to bequeathing real estate.