Drafting a Will: Why Good Intentions Alone Are Not Enough
Anyone who wants to plan their estate can achieve a great deal with just a few sentences—but can also trigger unintended consequences. Typical mistakes can be avoided if important issues are considered early on and legally and unambiguously addressed.
Reliance on the statutory order of succession
It is a common misconception that the surviving spouse automatically inherits the entire estate upon the death of the other spouse. In fact, it is extremely rare for a spouse to inherit the entire estate alone!
Let’s take a married couple, Anna and Thomas, with two children. Thomas dies without leaving a will. This does not automatically make Anna the sole heir. Her two children also inherit alongside her. Under the standard statutory rule of community of accrued gains, the surviving spouse inherits only half of the estate alongside the children according to the statutory order of succession; the other half goes to the children. Anna then forms a community of heirs with her children. This can lead to significant difficulties, especially if the children are still minors or have their own ideas.
The statutory order of succession can be even more surprising for childless married couples. If Thomas dies without children and without a will, not only his wife Anna but also Thomas’s relatives may inherit—in particular, his parents or, if one parent has already died, that parent’s descendants, such as Thomas’s siblings or their children.
Dr. Sophie Burchardi, executive director of the Hamburg Chamber of Notaries, emphasizes: „In most cases, it’s worth not simply leaving the succession to the law, but rather setting out your own wishes in a will.“ However, there are some pitfalls to watch out for here as well.
A signed will is not automatically valid
Mistakes are often made even when it comes to the form of the will, because a holographic will must be written and signed entirely in the testator’s own handwriting. A document drafted on a computer, then printed out and signed, is not sufficient—it is invalid. If spouses draw up a will together, one of them must write the will by hand, but the other must also sign it.
Ambiguous Appointment of an Heir
People who draw up a will usually want one thing above all else: to provide clarity and spare their loved ones future disputes. Yet even seemingly simple wording often leads to questions of interpretation and conflicts.
The following example illustrates the pitfalls that may lie in wait: A mother writes in her will: „I bequeath my house to my daughter. My son inherits my bank balance.“ What sounds clear at first raises important legal questions: Did the mother name only her son as her heir and simply leave a bequest to her daughter? Or did she intend to make both children her heirs?
The legal distinction is significant: An heir becomes the universal successor to the deceased, and all rights and obligations are thereby transferred to the heir—including any additional assets not mentioned in the will. A bequest, on the other hand, generally grants only a claim to a specific financial benefit. If the terms „inherit“ and „bequeath“ are used incorrectly in a will, this can lead to protracted legal disputes.
Unintended Binding Effect
In the case of joint wills—which can be drawn up jointly by married couples, but not by unmarried couples—many married couples are unaware that certain provisions cannot be changed by the surviving spouse after the death of the first spouse. A classic example is the so-called „Berlin Will,“ in which a married couple name each other as sole heirs and their children as residual heirs. If, after the death of the first spouse, the surviving spouse wishes to amend the will—for example, to leave a larger share to one of the children or to name a new partner as an heir—the binding effect of the joint will may prevent this. Whether this is the case depends on the specific terms of the joint will.
Notarial advice on ensuring the proper execution of a person's last will and testament
Notaries ensure that a person’s last will and testament is recorded in a legally unambiguous and valid manner. They advise on possible options and explain the legal consequences of the chosen provisions.
Another practical advantage of a notarized will becomes apparent after the testator’s death: It generally replaces the certificate of inheritance as proof of succession if the line of succession is clearly established therein. This spares the heirs the need to go through the process of obtaining a certificate of inheritance, which is often time-consuming and costly.
More information and images on this and other topics can be found on the website of the media association of the chambers of notaries at: