Powers of Attorney for Business and Private Assets
In the event of death, heirs or relatives cannot act immediately on behalf of the deceased – they must first prove their entitlement by means of a certificate of inheritance or a notarial will. However, this can take up valuable time. Therefore, the testator should issue powers of attorney to suitable persons.
The same applies in the event that a person is no longer capable of business or action, for example in a coma situation.
If an entrepreneur is not able to act as managing director, others must be able to act on his behalf. If no procurations or powers of attorney have been granted, business powers of attorney or general powers of attorney should in any case be available. This also applies to the shareholder level: as long as the heir cannot show a certificate of inheritance or a public will, he is not formally entitled and therefore cannot submit any shareholder resolutions to the commercial register – such as the resolution in which he has appointed himself as the new managing director.
Precautionary Power of Attorney and Living Will
For their very personal situation due to serious illness or legal incapacity, everyone provides decision-making aids as far as possible, such as a living will and a durable power of attorney for health care. And in the event that both parents of minor children die, a custody declaration is recommended, i.e. the designation of persons who are to exercise custody – or not at all. The family court will use this as a basis.
In principle, these personal dispositions do not belong in a will, because otherwise they only become known when the will is opened and thus sometimes too late. Separate declarations are therefore more practicable; in certain cases, a notarial authentication is also recommended here.
The same also applies to dispositions and wishes for one’s own funeral. Special wishes, for example regarding the type of burial, should be found in a separate funeral decree.
Wills and Contracts of Inheritance
The will or an inheritance contract regularly form the basis for succession planning. If the testator has not yet drawn up a will, he must do so immediately if the legal succession would lead to unwanted or unfavourable results in his case. In any case, the inheritance of business assets to minors without execution of a will should be avoided. The inheritance of shares in family businesses to the wife of a partner should also often be excluded. Since the development and drafting of a far-reaching will takes time, it may be necessary to draw up a provisional immediate will which contains the most important succession regulations and at least channels the estate to the desired persons. According to German law, wills can be drawn up by notary or private writing, both forms are of equal value. In not just one case, a short but formal decree on a notepad helped to arrange the estate correctly in the most important points in good time.
Letters to Relatives and Companies
Frequently, the testator formulates instructions, wishes and greetings to his surviving dependants, but also to the company management. It is also better to include these explanations in one’s own letters and not to include them in the will. In any case, the author must avoid the risk of reading out testamentary orders and conditions that undermine the actual will.
The Emergency Kit (Notfallkoffer)
Putting together an emergency kit takes less time than is often assumed – but it does require consistent handling. The result helps the family and relatives and saves them some worries at least at this point.