Decision of the OLG Düsseldorf – Case No. 3 WF 81/24
Parents are allowed to renounce an inheritance on behalf of their minor child if it serves the child’s best interests. This was ruled by the OLG Düsseldorf in its decision dated October 24, 2024 (Case No. 3 WF 81/24). However, the prerequisite for renouncing the inheritance is the approval of the family court. The decision to renounce the inheritance is made within the framework of parental custody and asset management of the respective parent who legally represents the child. Such court decisions are decisive for the validity of the renunciation.
Those who inherit receive everything – the assets and the debts. Potential heirs must therefore weigh their options and can accept the inheritance expecting an increase in assets or renounce it out of concern for the estate’s over-indebtedness. For their minor children, parents must make this decision on behalf of the child. A renunciation of inheritance must serve the child’s best interests and must mandatorily be approved by the family court, according to the law firm MTR Legal Attorneys, which advises in family and inheritance law among other areas.
Introduction to Renunciation of Inheritance
Renunciation of inheritance is a central instrument in German inheritance law that allows heirs to reject an inheritance along with all associated rights and obligations. Especially if the deceased’s estate is burdened with significant debts, renunciation can be a prudent option for heirs to avoid personal liability for obligations. The Higher Regional Court of Düsseldorf (OLG Düsseldorf) and other higher regional courts recognize renunciation as a legitimate means to protect oneself from financial risks that may arise from accepting an inheritance. Heirs must consider whether acceptance or renunciation of the inheritance is sensible and which legal requirements for renunciation apply.
Those considered as heirs should familiarize themselves early with their rights and obligations. Accepting an inheritance means not only taking over assets but also being liable for any debts of the deceased. The OLG Düsseldorf and other courts therefore emphasize the importance of an informed decision. In many cases, court approval of the renunciation is required, especially when minor heirs are involved or particular circumstances exist. It is important to gather all relevant information before making a decision to fully understand the legal consequences. German law expressly provides heirs with the possibility to renounce inheritance to protect themselves against unforeseeable liability risks. Especially in the jurisdiction of the OLG Düsseldorf, it is advisable to obtain legal advice in advance to make the best decision for all parties involved.
Children Renounce Inheritance
In the proceedings before the OLG Düsseldorf, the deceased left no will. His three sons had renounced the inheritance, so according to statutory succession an grandchild was to inherit. However, the mother declared renunciation of the inheritance for her child as well and applied for the corresponding approval from the competent family court.
The family court refused approval. It justified this by stating that the deceased had liabilities of approximately 38,500 euros but also owned a condominium valued at around 75,000 euros, with the child legally regarded as the owner of the inherited assets. Additional debts concerned a GmbH also included in the estate. However, liability here is limited to the company’s assets. The deceased’s estate may also include other items such as securities or bank accounts, which must be considered when evaluating the estate’s assets. The estate includes, besides real estate, debts, assets, cash, and monetary amounts that must be properly managed. Asset and estate administration play a central role for minor heirs to securely regulate assets and any debts. The legal capacity of a minor heir is limited, therefore parents or the family court assume administration. Upon reaching majority, the child can dispose of the inherited assets independently. If multiple heirs exist, a community of heirs forms, in which the rights and obligations of all parties must be observed. If the estate is over-indebted, it is possible to initiate insolvency proceedings for the estate to limit liability to the estate itself. Parents have the duty to properly manage the estate in the interest of the child. Reasons why parents consider renouncing inheritance for their child include primarily the avoidance of debts and protection of the child’s well-being. The probate court plays an important role in the administration and approval of the renunciation and examines the legal prerequisites. The pages of legal documents and court files are important in the proceedings as they form the basis of the decision. Special legal provisions apply particularly to children and persons with limited legal capacity that must be observed in the proceedings. Therefore, the estate is not clearly over-indebted.
Deadline for Renunciation
The waiver period is a crucial aspect of renouncing an inheritance and should be carefully observed by every potential heir. The representation of minor heirs is generally carried out by the parents or a guardian, who act on behalf of the child. Basically, the period for renouncing an inheritance is six weeks from the time the heir becomes aware of the inheritance event and their appointment as heir. These deadlines also apply to the status of heir and must be observed by the representatives of minor heirs. Upon reaching the age of majority, different deadlines and rights established by law apply to the persons concerned. Compliance with the legal deadlines is binding for all parties involved. The law stipulates that the waiver period must be strictly adhered to in order to ensure the validity of the renunciation. Legal documents and court papers play a central role in the proceedings. Important legal information and guidance can be found on the page of the probate court, which is essential for those involved.
The declaration of renunciation must be submitted within this period to the competent probate court. In the district of the Higher Regional Court (OLG) Düsseldorf, as well as in other Higher Regional Court districts, it is important to know the respective jurisdiction and local specifics. The period begins on the day the heir learns of the inheritance and their status as heir. Anyone who misses the deadline is legally considered an heir and can no longer renounce the inheritance. Therefore, it is advisable to contact the probate court early and submit the declaration of renunciation promptly and correctly. Especially within the scope of the OLG Düsseldorf and other courts, adherence to deadlines and precise knowledge of jurisdiction are decisive for an effective renunciation.
Renunciation of Inheritance Must Serve the Child’s Welfare
The mother filed an appeal against the decision and was successful at the OLG Düsseldorf. The Higher Regional Court overturned the family court’s decision and granted judicial approval for the renunciation of the inheritance. According to the Higher Regional Court, the renunciation was consistent with and even required by the welfare of the child. The court primarily considered two aspects: firstly, the financial situation of the estate was by no means clearly positive; secondly, the fact that all other close relatives had already renounced the inheritance was a strong indication of a problematic or even overindebted estate situation.
In such cases, both parents may act together or a legal representative may act on behalf of the child. The parents are subject to the statutory obligation of proper asset care and management for the child. They must protect the child’s assets and manage them in the best interest of the child. Reasons that motivate parents to renounce an inheritance for their children typically include imminent overindebtedness, unclear estate conditions, or liability risks. Special protection needs must be considered especially for children, which is why the court carefully examines the parents’ decision.
The OLG Düsseldorf further explained that, in the case of renunciation of inheritance by parents on behalf of a minor child, the decision must correspond to the child’s welfare. The criterion is not whether the estate is objectively overindebted, but whether accepting the inheritance poses a recognizable risk to the child that could endanger their assets. The renunciation thus serves to protect the personal financial situation of the affected person, i.e., the child. If there are significant uncertainties about the financial situation or imminent liability risks, renunciation is regularly in accordance with the child’s welfare.
OLG Considers Renunciations as Strong Indication
A crucial aspect for the decision was the so-called indicative effect of the renunciations of inheritance by close relatives. The Higher Regional Court clarified that the renunciation by family members who were particularly close to the deceased and had better insight into their financial circumstances should be considered a significant indication of over-indebtedness. The key date for the deadline to renounce the inheritance and for estate settlement is the death of the deceased, since this is when the inheritance arises and the legal consequences take effect. It should be noted that certain persons, such as parents as legal representatives of minor children, are legally restricted in renouncing an inheritance and in some cases require the approval of the family court. The assets of the estate play a central role in the decision regarding acceptance or renunciation of the inheritance. In case of unclear financial circumstances, estate administration can be requested from the probate court to limit the heirs’ liability to the estate and manage the estate. Minor heirs have limited legal capacity and can only conclude legal transactions related to the estate with the consent of their legal representatives and, if applicable, the family court. In a community of heirs that also includes minor heirs, special legal requirements and approvals are necessary to enable them to act or to leave the community of heirs. If the estate is over-indebted, insolvency proceedings can be initiated to limit liability to the estate and to settle debts. Typical cases in which the family court must intervene involve the withdrawal of representation authority or the administration of estates of minor heirs to safeguard the child’s welfare. Legatees who are favored by a legacy in the will have special rights in the event of inheritance and may receive legal advice or representation. In inheritances from grandparents to minor grandchildren, the legal aspects and administration of the inherited assets must be given special attention. The contents of the estate include, besides real estate and company shares, also cash, monetary claims, and other assets that must be considered in estate settlement.
Furthermore, the Higher Regional Court emphasized that an apparently valuable estate item, such as the property in this case, does not automatically prove a positive inheritance estate. What matters is the overall view. In this case, there were significant risks from the deceased’s involvement in a limited liability company. Such company shares can pose considerable financial risks for the heir—especially if the deceased was acting as managing director and unresolved liability issues remain. From the court’s perspective, such uncertainties can make acceptance of the inheritance unreasonable.
The Role of Guardians
Guardians take on a central role when it comes to administering inheritances for minor heirs. They are either appointed by the deceased’s will or, if there is no testamentary disposition, by the family court. The primary task of the guardian is to manage the minor child’s assets responsibly and to protect their rights and obligations in connection with the inheritance.
The guardian is obliged to always act in the best interests of the child. They must ensure that the minor heir’s assets are not endangered by reckless decisions or risky investments. The guardian’s duties also include representing the child towards third parties and handling all necessary legal transactions connected to the estate. The family court supervises the guardian’s activities and can intervene if necessary to protect the welfare of the child.
Especially in complex estates, such as those containing real estate, company shares, or substantial assets, the guardian’s role is particularly important. They must not only ensure the administration of the inheritance but also make sure that all rights of the minor heir are preserved and no disadvantages arise. The appointment of a guardian is thus an important protective mechanism in German inheritance law to shield minor heirs from financial risks and poor decisions.
Tax Aspects
Tax issues also play a significant role in the administration of inheritances for minor children. As soon as a child inherits, the estate is generally subject to inheritance tax. Parents or guardians are obliged to fulfill the tax obligations for the minor child and properly report the inheritance to the tax office.
There are various possibilities to minimize the tax burden. For example, minor heirs have specific tax exemptions that can be considered when calculating inheritance tax. Exceptions and concessions, such as for family homes or certain assets, can also be utilized to reduce the tax load.
To optimally exploit all options and avoid missing deadlines, it is advisable to consult a tax advisor early on. This advisor can comprehensively guide the parents or guardians and ensure that all tax obligations are fulfilled. This prevents the minor heir’s assets from being unnecessarily diminished by tax payments and ensures the inheritance is managed in the best interest of the child.
Practical Tips for Renouncing an Inheritance
If a parent or guardian is considering renouncing an inheritance for a minor child, they should observe some practical guidelines to best protect the child’s rights and obligations. First, it is crucial to keep the statutory deadlines in mind: the renunciation of the inheritance must take place within six weeks after becoming aware of the inheritance event and their own status as heir. If this deadline is missed, the inheritance is considered accepted—with all associated rights and obligations, including liability for any debts of the estate.
The renunciation must be made in a specific form, typically through a declaration to the probate court. It is advisable to consult an experienced attorney early to ensure that all formal requirements are met and the renunciation is effective. A lawyer can also explain the possible consequences of the renunciation, such as the loss of claims to assets or the transfer of heir status to other relatives.
Protecting the Child from Financial Risks
It is especially important to always keep the interests of the minor heir in focus. The decision to renounce should always aim to protect the child’s assets and avoid any potential liability for debts of the estate. Through careful review of the estate situation, compliance with all deadlines, and support from a lawyer, it can be ensured that the renunciation is legally secure and in the child’s best interest.
The decision of the Higher Regional Court of Düsseldorf strengthens the legal position of parents who want to renounce a risky inheritance in the interest of their child. It demonstrates that renunciation is possible when there are sufficient indications of economic risk to the child. The child’s welfare takes precedence over the formal retention of assets when significant economic dangers threaten.
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