Anyone who is entitled to a compulsory portion from an estate has the right to be present when the list of estates is being drawn up. However, this right may expire.

When a person dies, close relatives are often entitled to a compulsory portion of the estate. However, it is not always clear what the estate includes. This requires the list of estates, which heirs can also request by law. And they can request that a notary draw up this register. Heirs can even be present during the creation.

For this, the notary must make several appointment proposals. However, if those entitled to a compulsory portion reject every proposed appointment, they may be deprived of their right to be consulted when the list is being drawn up. This emerges from a judgment (Az.: 10 W 29/21) of the Frankfurt Higher Regional Court, to which the working group on inheritance law of the German Lawyers’ Association refers.

In the specific case, a person entitled to a compulsory portion had pressed for the notarial recording of the assets of the estate to be consulted. However, she rejected more than ten appointment proposals from the notary. The reasons: Absence of your own lawyer, appointments made too short notice, absence due to your own vacation and precautionary measures during the corona pandemic. The notary then drew up the register without the presence of those entitled to a compulsory portion. This reprimanded the procedure.

Wrong, the court found. Under the given circumstances, the request of the persons entitled to a compulsory portion to be consulted for the admission was contrary to good faith, since they did not agree to any of the proposed dates. In addition, the general rejection with reference to the corona pandemic is not enough. The person entitled to a compulsory portion could at least have asked her lawyer to take part in drawing up the register.

As a rule, several appointments must be offered with a certain lead time. However, anyone who has so far rejected all proposed dates – even if this is partly justified – must then show an increased willingness to cooperate in order to make an appointment for the recording of the directory possible. This was not the case here, so that the notary was entitled to record the list without the persons entitled to a compulsory portion.

(This article was first published on Tuesday, May 24, 2022.)