Handing over one’s own company to a daughter or son has always required planning that resulted in a will, marriage contract and/or inheritance contract. The changes in inheritance law that have just been made and those proposed for 2027 only make the transfer of a company marginally easier. Legal restrictions still exist.
For you as an entrepreneur, the free availability is increased with regard to around 6.6% of your total assets (assumption: typical succession planning among entrepreneur spouses**). This increase can be a decisive relief in critical constellations. The inheritance law options require a careful analysis. Only then can the mandatory wills be drawn up or a marriage and/or inheritance contract be concluded.
In any case, legal advice is necessary to successfully pass on one’s own company within the family. The reforms of the law of succession do not change this. After all, in our daily counselling practice, we have been able to work out suitable solutions for practically all constellations.
Advice on inheritance law covers the entire assets of the entrepreneurial family. If there is nothing to the contrary, all family members concerned will be involved at the appropriate time. Specialists in other fields should also be involved on a case-by-case basis. Depending on the specific family situation, the formation of a “family council” could also prove advantageous. This would help to establish a culture for developing and supporting family-internal business successions.
A draft law has been available since 2022. It is intended to favour (family-internal) company succession if the parties involved did not succeed in concluding a comprehensive agreement in the form of an inheritance contract during the lifetime of the deceased. If the instructions and agreements under inheritance law are lacking in the form required by law, an heir can demand the allocation of the entire company. If the payment of the compensation claim of the co-heirs causes serious (liquidity) difficulties, a deferral of payment may be requested for a maximum of 10 years.
In many, if not most cases, the company is already transferred to a descendant during his or her lifetime. For this constellation, the draft provides that the company parts necessary for the business are to be credited at their market value at the time of the transfer (provided that a professional business valuation has been prepared and submitted to a competent authority). This would lead to a desirable increase in the plannability of the transfer of the company during the lifetime of the acquiring descendant, provided that it was not already possible during the lifetime to involve all heirs in the company succession in a legally binding manner.
Inheritance law reform(s) or not – for reasons of predictability and reliability, a solution involving all affected family members should be sought, as it has been in the past. Gaining the insight, willingness and trust of all those involved can be a demanding process. On this basis, the entire process can be cast in a contractually binding form and imponderables can be excluded. If this is not possible, the goal can be achieved through unilateral inheritance law orders (if necessary, with contracts among individual participants).** Reduction of the compulsory share of the descendants in the case of community of property from 3/16 to 2/16 of the total assets.
AMATIN AG Rechtsanwälte │ Attorneys at Law │ Conseiller Juridiques/Avocats
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