Testament 2026: Forms, Foundations, Pflichtteil, Strategy

What is a Testament?

A Testament is a unilateral declaration of intent by which a person — the erblasser (decedent under German law) — determines who is to receive their assets after death. The legal basis is §§ 1937 ff. BGB. The Testament is revocable at any time (§ 2253 BGB) and can be supplemented or replaced.

Anyone who does not make a Testament passes on under the statutory succession of §§ 1924 ff. BGB. The statute divides heirs into orders:

• 1st order: descendants (children, grandchildren)
• 2nd order: parents and their descendants (siblings, nieces/nephews)
• 3rd order: grandparents and their descendants
• 4th order: great-grandparents and their descendants

Spouses inherit alongside, under § 1931 BGB — their share depends on the matrimonial property regime. In the Zugewinngemeinschaft (community of accrued gains), the statutory default regime, the spouse inherits one half of the estate alongside children.

Anyone not happy with that statutory distribution — whether because an unseparated spouse would be excluded, because a specific child should be passed over, because Erbengemeinschaften should be avoided, or because tax optimisation is wanted — needs a Testament.

Three main forms of the Testament

1. Handwritten (eigenhaendiges) Testament

The handwritten Testament under § 2247 BGB is the lowest-threshold form: it must be fully handwritten, with place and date, and personally signed. Cost: zero. Form: three sentences on a piece of paper.

In practice the handwritten Testament is fully workable for clear, simple wealth positions (one heir, clear family situation). With complex constellations — several children, patchwork family, real estate, business shareholdings — formal mistakes or interpretation issues arise easily. More details: Writing a Testament: instructions, template and 7 mistakes.

2. Notarial (public) Testament

The notarial Testament under § 2231 BGB is declared before a notary — either by oral declaration or by handing over a written document. The notary advises, drafts in a legally safe form, and lodges the Testament at the central Testament register.

Advantages: advice from the notary, significantly lower challenge risk, no additional Erbschein needed (the notarial Testament substitutes for it in many cases). Disadvantages: cost under GNotKG (graduated by asset value) and the time involved.

Detail comparison of costs: Testament at the notary: costs and process.

3. Erbvertrag

The Erbvertrag under §§ 2274 ff. BGB is concluded between two or more persons — typically between spouses or between parents and children. Unlike a Testament, the Erbvertrag is not unilaterally revocable. It binds both sides.

Practically relevant for: transfers against consideration (care commitment, hand-over of a farm, business succession), securings for non-biological children in patchwork families, constellations with a foreign element.

The Erbvertrag is the most powerful form — but also the most rigid. Anyone who does not understand it locks themselves out of structuring options.

Berliner Testament — the most common and most problematic

The Berliner Testament is a joint spousal Testament under § 2269 BGB: the spouses set each other as sole heirs; the children only inherit after the death of both parents.

So far, so intuitive. Three critical points are regularly overlooked in practice:

1. Pflichtteil trap, first stage. Children can demand their Pflichtteil on the death of the first parent, even though they are only supposed to inherit on the second inheritance. Without a Pflichtteilsstrafklausel (penalty clause) that is a typical family conflict.
2. Tax trap. In the Berliner Testament the assets are inherited twice — first to the surviving spouse, then to the children. Both transfers trigger Erbschaftsteuer (German inheritance tax). The child Freibetrag of EUR 400,000 per parent is at risk in this constellation.
3. Binding effect. After the death of the first to die, the survivor can no longer change the joint Testament unilaterally. Anyone who writes their Berliner Testament at 60 and at 80 — now widowed — wants to remarry, can often no longer adapt anything.

Main guide: Berliner Testament 2026: template, Pflichtteil, mistakes. Deep-dive: Pflichtteil penalty clauses compared (2026).

Step by step: structuring a Testament in 7 stages

In advisory work I typically proceed in this order:

1. Stocktake. Build the wealth overview — real estate, bank balances, securities, life-insurance contracts, shareholdings, debts. Which assets have which value trajectory?
2. Clarify the family situation. Who are the statutory heirs? Which Pflichtteil-entitled persons are there? Which special constellation (patchwork, disabled child, divorced spouse)?
3. Define the goals. What should be achieved — wealth protection, tax optimisation, family peace, protection of a specific heir?
4. Choose the Testament form. Handwritten for simple situations, notarial for complex or larger estates, Erbvertrag for binding agreements.
5. Draft the clauses. Heir designation, legacies, partition orders, Pflichtteil penalty clauses, fiduciary/successor heirship, executorship.
6. Check the Pflichtteil. Which claims remain? How big is the risk? Which lifetime strategies (Schenkungen, Pflichtteilsverzicht) can reduce the Pflichtteil?
7. Deposit and updating. Deposit the Testament with the probate court (around EUR 75). Review every 5 years for the need to adjust.

Anyone who runs through all seven stages has a Testament that holds — and avoids the bulk of typical follow-on conflicts.

Comparison table: Testament forms 2026

The choice of form is not a pure cost question. With assets over EUR 500,000 or with complex family situations the notarial Testament is almost always the better choice — the notary's fees are marginal in relation to the follow-on conflicts and tax mistakes avoided.

Pflichtteil — the limit of testamentary freedom

German inheritance law guarantees close relatives a Pflichtteil (§§ 2303 ff. BGB) — even against the erblasser's will. Pflichtteil-entitled persons are:

• Descendants (children, and if they fall away, grandchildren)
• Spouses (also separated, as long as not divorced)
• Parents of the erblasser (only where no descendants exist)

Amount: half of the statutory share, as a pure cash claim against the heirs. With an erblasser leaving a wife and two children in Zugewinngemeinschaft, the Pflichtteil per child is one eighth of the estate.

Pflichtteilsentziehung (deprivation, § 2333 BGB) is only possible in narrow exceptions — an attempt on the testator's life, a serious offence, conviction to at least a one-year custodial sentence. More in the topic hub Enterben.

A Pflichtteil reduction is legally possible by three routes:

1. Notarial Pflichtteilsverzicht (waiver of compulsory share) during lifetime against settlement (§ 2346 BGB) — 100 per cent success rate
2. Lifetime Schenkungen subject to the ten-year period (§ 2325 BGB) — 10 per cent per year melt-down
3. Structural solutions (Familienstiftung, Familienpool) for larger estates

Frequently asked questions

Do I need a Testament at all?

Yes, in almost all cases. The statutory succession regularly leads to unwanted constellations — Erbengemeinschaften, Pflichtteil conflicts, quotas that do not fit actual family life. Anyone taking responsibility for close persons should have a Testament.

Is a handwritten Testament enough?

For simple wealth situations, yes. Three criteria for the handwritten form: (1) a clear wealth position without business shareholdings or complex real estate, (2) few heirs with a clear distribution, (3) no patchwork family. With complex constellations the notarial Testament is almost always more economical.

What is the difference between a Testament and an Erbvertrag?

The Testament is unilateral, revocable at any time. The Erbvertrag is bilateral, binding both sides — only changeable by mutual consent. Practically relevant: anyone wanting binding effect (e.g. care commitment in return for heir designation) takes the Erbvertrag. Anyone wanting flexibility takes the Testament.

How does the Berliner Testament work in tax terms?

Tax-wise often DISADVANTAGEOUS, because the assets are inherited twice — first to the surviving spouse, then to the children. The child Freibetrag of EUR 400,000 per parent is effectively lost on the first inheritance. With larger estates, alternative constellations (separate Testaments, legacy solutions, Familienpool) should be examined.

What is the Pflichtteil and how high is it?

The Pflichtteil is half the statutory share, as a pure cash claim against the heirs (§ 2303 BGB). Pflichtteil-entitled persons are children, spouses and — with childless erblasser — the parents. With an erblasser leaving a spouse and two children in Zugewinngemeinschaft, the Pflichtteil per child is one eighth.

Can I change my Testament at any time?

Yes — as long as you have testamentary capacity. The Testament is revocable at any time under § 2253 BGB. You can rewrite, destroy the old one, or implicitly revoke through a later Testament. Exception: Erbvertrag and Berliner Testament after the death of the first to die — both have binding effect.

When should I update my Testament?

At every life event: marriage, divorce, birth of a child, death of an envisaged heir, larger wealth increase (inheritance, lottery, sale of a house), Wegzug. Even without an event: review every 5 years for the need to adjust.

What does a notarial Testament cost?

Costs depend on GNotKG and are graduated by asset value. At EUR 100,000 around EUR 165; at EUR 1,000,000 around EUR 1,735; at EUR 5,000,000 around EUR 8,000 — each one-off. Detailed overview in the spoke Testament at the notary: costs and process.

Deeper detail answers

• Writing a Testament: instructions, template and 7 mistakes — Step-by-step instructions for the handwritten Testament
• Berliner Testament 2026: template, Pflichtteil, mistakes — The most common spousal Testament in detail
• Pflichtteil penalty clauses compared (2026) — Jastrow, standard, remarriage clause
• Challenging a Testament 2026: grounds, periods, chances — § 2082 BGB and the challenge periods
• Testament at the notary: costs and process — GNotKG fees and notary practice
• Statutory succession without Testament: who inherits what? — What happens without a Testament
• Topic hub Enterben — Pflichtteil deprivation and strategies

Lead magnet: structuring the Testament

• Erbschaftsteuer Schnellcheck — How high would the tax for your heirs be today? Quick first assessment.
• Notfallkoffer — Structured documentation for assets, accounts, insurance and last wishes.
• Pflichtteil protection — Strategies for legal Pflichtteil reduction.
• Arrange a first meeting — Individual Testament structuring with wealth analysis.

Authority sources

• § 1937 BGB (heir designation by last will)
• § 2247 BGB (handwritten Testament)
• § 2231 BGB (creation of a public Testament)
• § 2269 BGB (Berliner Testament)
• § 2274 BGB (Erbvertrag)
• § 2303 BGB (Pflichtteil claim)
• § 2253 BGB (revocation of the Testament)
• GNotKG (Court and Notary Costs Act)
• BGH judgment of 13 April 2011 — IV ZR 204/09 (representation principle in disinheritance)
• BGH decision of 12 February 2014 — XII ZB 607/12 (contact break-off as ground of forfeiture)