Anticipated succession (vorweggenommene Erbfolge) before moving abroad means transferring assets to future heirs during one’s lifetime, with the transfer still notarised and completed in Germany. Depending on the object, it requires notarial form (for example § 311b (1) and § 518 (1) German Civil Code, Bürgerliches Gesetzbuch, BGB), affects the compulsory portion and equalisation (Ausgleichung), and is hard to reverse without agreed rights of recovery. The move can also change the applicable inheritance law, and for shares in corporations from a holding of one percent, exit taxation must be examined.
Anyone who moves abroad and wants to transfer assets to the next generation at the same time often chooses anticipated succession before the move: the transfer is still notarised and completed in Germany, while the transferor lives here and all those involved can be reached. This has advantages, because form, jurisdiction and timetable are manageable. It also has risks, because a transfer without agreed rights of recovery can as a rule be reversed only with difficulty, and because the move can change the applicable inheritance law. This article deals with the civil-law side and the timing: what can be agreed, what must be notarised, what does it mean for the compulsory portion and inheritance law, and what must be clarified before the move? The tax side of the gift, in particular gift tax and deadlines, is covered only in outline. The legal position is as of October 2026. It is written for readers abroad as well, for example German citizens planning to emigrate or family members living outside Germany.
What Anticipated Succession Means
Anticipated succession means the transfer of assets during one’s lifetime to a later heir, mostly to children; the general presentation is in Anticipated succession. Legally it is a gift or a mixed gift, often combined with consideration such as an obligation to provide care, a right of residence, usufruct or maintenance payments. Unlike a disposition upon death, it takes effect immediately. It does not replace the will but supplements it; how the two routes relate to each other is shown in Transferring assets during your lifetime instead of a will.
Typical reasons for making the transfer before the move are the wish to hand over responsibility, the intention to avoid disputes, the use of tax allowances and the concern about being less able to act from abroad. A move is, however, an unsuitable occasion if the decision is made only under time pressure.
The Timeline: What to Do before the Move
Seven steps are to be completed before the move, from taking stock to deregistration.
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| Step | Content | Why before the move |
|---|---|---|
| Taking stock | Real estate, accounts, holdings, insurance, liabilities | without an overview no reliable transfer |
| Goals and family | Who is to receive what, who is entitled to a compulsory portion, who is the spouse | foresee conflicts among siblings |
| Structuring | Gift, mixed gift, rights of recovery, rights of use | clarify the content of the contract before the appointment |
| Notarisation | Notary, for land subsequently the land registry | Form and completion in Germany |
| Completion | Registration in the land register, for GmbH shares assignment and new list of shareholders, handover of possession | the transfer is complete only upon completion |
| Accompanying dispositions | Will, lasting power of attorney (Vorsorgevollmacht), choice of law | Fix the succession after the move |
| Move | Deregistration, giving up the domicile | only after effective transfer |
For tax purposes it can be decisive that the transfer is effectively completed before unlimited tax liability ends. For shares in corporations there is a special connection here with exit taxation; details are in Exit tax on GmbH shares. The timetable should therefore be coordinated with tax advice.
Form and Completion
Which form a transfer requires depends on the object:
- Land: contracts that oblige a party to transfer or acquire require notarial recording (§ 311b (1) BGB). Ownership passes only upon registration in the land register.
- Promise of a gift: a contract by which a performance is promised as a gift requires notarial recording (§ 518 (1) BGB). The defect of form is cured by performance (§ 518 (2) BGB).
- GmbH shares: the assignment and the obligation to make it require a contract concluded before a notary (§ 15 (3) and (4) GmbHG). The articles of association can provide for further requirements, for example approval by the company (§ 15 (5) GmbHG). The change takes effect vis-à-vis the company only once the new list of shareholders has been filed with the commercial register (§ 16 (1) GmbHG); the notary who records the deed submits the list (§ 40 (2) GmbHG). This should be done before the move.
- Cash assets and securities: they are completed by transferring the account or securities account; a promise of a gift for future payments requires form.
- Minor recipients: depending on the content of the contract, a supplementary guardian or court approval may be required, for example if obligations are assumed.
Whether bank powers of attorney, lasting powers of attorney or authorised representatives are needed for the time after the move depends on the structuring.
Structuring Elements: What Can Be Agreed
In the transfer, rights of use, reservations of recovery, consideration and requirements of consent can be regulated.
Rights of Use: Usufruct and Right of Residence
If the transferor reserves a usufruct (Nießbrauch) or a right of residence, he or she secures his or her own support. This can at the same time affect the compulsory portion: according to the case law of the Federal Court of Justice (Bundesgerichtshof), the ten-year phasing out in the case of a comprehensive usufruct as a rule does not begin to run as long as the testator has not given up the enjoyment of the gifted object (BGH, judgment of 27 April 1994, IV ZR 132/93). In the case of a right of residence, the scope matters; a right over only parts of the house prevents the start of the period only in exceptional cases (BGH, judgment of 29 June 2016, IV ZR 474/15). Anyone who moves away and keeps the right of use should plan for this. On usufruct and waiver see Waiver of usufruct against compensation.
Reservations of Recovery
The transferor can reserve rights of recovery, for example for the case that the recipient dies before him or her, sells or encumbers the object without consent, becomes insolvent or divorces. Such reservations secure control, but should be clearly worded and secured in the land register by a priority notice (Vormerkung). The law also recognises rights of recovery because of impoverishment of the donor (§ 528 BGB) and because of gross ingratitude (§ 530 BGB); they do not replace a contractual provision.
Care and Support Services
If the recipient undertakes to provide care, support or payments, it is no longer a pure gift. This must also be assessed for inheritance law and tax purposes and should be clearly regulated in the contract, so that it is not later disputed whether consideration was agreed.
Consent of the Spouse
If the transferor lives under the statutory matrimonial property regime and almost his or her entire assets are transferred, the spouse’s consent may be required (§ 1365 BGB). A missing consent can make the transfer invalid; this should be checked before the appointment.
Compulsory Portion, Equalisation and Set-Off
A transfer before the move affects the rights of the other children and the spouse. Three instruments are to be distinguished:
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| Instrument | Effect | When to determine |
|---|---|---|
| Supplementary compulsory portion (Pflichtteilsergänzung, § 2325 BGB) | Gifts are notionally added to the estate when the compulsory portion is calculated, with ten-year phasing out | takes effect by operation of law |
| Set-off against the compulsory portion (§ 2315 BGB) | The transfer is set off against the recipient’s compulsory portion if this was determined at the time of the transfer | at the time of the transfer |
| Equalisation among descendants (§§ 2050 ff. BGB) | Dowries by operation of law, subsidies and vocational training if excessive, other transfers only if ordered | Order at the time of the transfer (§ 2050 (1) and (3) BGB) |
The supplementary compulsory portion is often underestimated in practice. A gift made ten years before death is regularly disregarded; before that it is taken into account proportionately; for gifts to the spouse, the period begins only when the marriage is dissolved. Anyone who wants to favour one child can agree a waiver with the person entitled to a compulsory portion; on this see Waiver of the compulsory portion in an international succession. A waiver is a separate agreement requiring notarial recording and requires the cooperation of the person concerned.
The Move Changes the Applicable Inheritance Law
After the move, a different inheritance law may apply to the remaining estate than to the transfer during one’s lifetime. From the point of view of German courts, the EU Succession Regulation (Erbrechtsverordnung, EuErbVO) connects to the last habitual residence, even in a third state (Art. 20, 21 EuErbVO); anyone who moves abroad can therefore trigger a different law applicable to the succession. A German national can retain German law by a choice of law (Art. 22 EuErbVO). This matters for the compulsory portion and the supplement, because a foreign law may shape these claims differently. Details are in German inheritance law when living abroad.
For planning this means:
- The will should be redrafted after the transfer so that it fits the remaining assets.
- An express choice of law should be considered if German law is to continue to apply.
- The effect of a choice of law in the destination state must be clarified with an adviser on the spot.
Tax Overview
Anticipated succession is for tax purposes generally a gift between living persons and is subject to gift tax under the rules of the Inheritance and Gift Tax Act (Erbschaft- und Schenkungsteuergesetz) to the extent that allowances are not sufficient. The personal allowances are 500,000 euros for spouses, 400,000 euros for children, 200,000 euros for grandchildren, and 20,000 euros for persons of tax class II and III (§ 16 (1) ErbStG). Acquisitions from the same person within ten years are aggregated (§ 14 (1) ErbStG), so that the allowances in principle renew every ten years. The acquisition must be reported to the tax office (§ 30 ErbStG), in the case of a gift also by the donor. For tax valuation, the provisions of the Valuation Act (Bewertungsgesetz) apply, which can deviate from market value.
Three points are important. First, the move of the donor or the recipient is relevant for gift tax, because unlimited tax liability is linked to domicile or habitual abode and German nationals are still treated as residents for five years after moving away (§ 2 (1) no. 1 ErbStG). Second, income from the transferred assets is in future generally taxed in the hands of the recipient; if the transferor reserves the usufruct, it remains with him or her. Third, for shares in corporations from a holding of one percent, exit taxation must be examined: if such a share is transferred to a person who is not subject to unlimited tax liability, the transfer itself can be treated as a sale (§ 6 (1) sentence 1 no. 2 Foreign Tax Act, AStG). On the aggregation of several transfers within ten years see Chain gifts and gift tax; here it suffices to note that the civil-law structuring and the tax planning should be carried out together.
The Federal Constitutional Court (Bundesverfassungsgericht) heard the inheritance tax cases in October 2026; until a decision, the law in force continues to apply, and changes are possible. Where the legal position is unclear or changing, a binding ruling from the tax office should be obtained before implementation (§ 89 (2) Fiscal Code, Abgabenordnung, AO; fee under § 89 (3) to (7) AO), where there is a foreign connection possibly also in the other state.
Particular Types of Assets
Different forms and risks apply depending on the type of asset.
Real Estate
For domestic real estate, the notary and the land registry are decisive. A right of residence and usufruct are entered in the land register, rights of recovery are secured by a priority notice. If the transferor sells instead of giving, different consequences apply, in particular for tax purposes.
Businesses and Holdings
Here the articles of association, voting rights, rights of pre-emption and often special tax rules apply. Succession in the business belongs in a plan of its own.
Foreign Assets
If assets are already located abroad, it must be clarified whether the local law recognises the transfer and what form it requires. An adviser on the spot should be consulted for this. The effect on the German compulsory portion remains a separate question.
Three Mistakes Laypeople Often Make
Laypeople above all underestimate time pressure, side effects and the adjustment of the will.
- Treating the move as a deadline for the transfer and therefore acting too quickly. Without agreed rights of recovery, the transfer can as a rule not be reversed unilaterally; rights of recovery, support and family must be clarified beforehand.
- Thinking only of tax. Compulsory portion, equalisation, matrimonial property regime and the law applicable to the succession are often overlooked, although they later cause more dispute than the tax.
- Not adjusting the will. After the transfer the old disposition often no longer fits, and a move can change the applicable inheritance law.
Example (Fictitious)
Mr. Weiß plans to move to Spain. He wants to transfer the apartment building to his daughter Nele, reserving a usufruct, and wants to give his son Tim cash assets. To be clarified are: notary appointment and registration before the move, reservations of recovery secured by a priority notice, a waiver of the compulsory portion or set-off for Tim, the wife’s consent, a new will with a choice of law, a lasting power of attorney and coordination with tax advice. Names and details are invented.
Conclusion
Anticipated succession before moving abroad uses the opportunity to choose sound forms in Germany and to hand over responsibility. It does, however, require planning: form and completion, rights of recovery, rights of use, compulsory portion and equalisation as well as the consequences of the move for the law applicable to the succession belong in an overall concept. The tax side is to be examined and coordinated separately.
Frequently Asked Questions
Must the transfer take place before the move?
Not necessarily in law, but in practice completing it in advance is supported by the fact that the notary, land registry and those involved can be reached. For tax purposes the point in time can be decisive, above all for shares in corporations.
Can I reverse a gift later?
Only if a right of recovery was agreed or statutory grounds exist, for example impoverishment of the donor (§ 528 BGB) or gross ingratitude (§ 530 BGB). Contractual reservations are more reliable.
Does the transfer protect against compulsory portion claims?
Not without more. Gifts are taken into account in the supplementary compulsory portion within ten years, with special features in the case of a comprehensively reserved usufruct and in the case of gifts to spouses. A waiver of the compulsory portion creates clarity, but requires the consent of the person entitled.
Does German inheritance law still apply after the move?
That depends on the destination state and the choice of law. From the point of view of German courts, the law of the last habitual residence applies in principle, even in a third state; German nationals can choose German law. For the foreign law, an adviser on the spot should be consulted.
Do I have to report the gift to the tax office?
Yes, as a rule within three months; the duty to report applies to the acquirer and the donor (§ 30 ErbStG). Whether tax is payable depends on allowances and earlier acquisitions.
Attorney Dr. Johannes Fiala and the law firm, with a focus on international inheritance law, tax law and asset protection in Munich, advise parents, entrepreneurs and wealthy individuals on anticipated succession before a move abroad, from structuring the transfer through coordination with the compulsory portion and inheritance law to coordination with tax advice. Dr. Fiala has published extensively on questions of emigration and asset protection. Contact the firm without obligation to have your individual situation discussed in an initial consultation.
