Inheritance Law2026-10-18

Appointing an Heir or Leaving a Legacy – Which Is Right for Your Situation?

Appointing an heir or leaving a legacy – the choice determines liability, a say in the estate, and enforceability. Here is how to make the right decision for your circumstances.

You want to leave something to someone in your will – but as an heir or as the beneficiary of a legacy? People drafting their own wills confuse these two concepts all the time. After the death, this causes the very disputes nobody wanted. Let me show you where the difference lies. I will also show you how to set it out in your will so that it holds.

In short

An heir steps into the deceased’s entire legal position. They take on all the rights, but they are also liable for the debts and must sort matters out with any co-heirs. The beneficiary of a legacy, by contrast, receives only a personal claim to a specific item against the heir or heirs. They bear no liability and have no say in the estate. Which form is right for you comes down to one question: should the person you are providing for share in the whole estate and bear responsibility for it, or should they simply receive a single item without having to concern themselves with the rest?

How I can help you

Assessing whether your wishes call for appointing an heir, leaving a legacy, or making a division directive
Wording the disposition so that it cannot be reinterpreted in either direction
Reconciling shares of the estate, legacies, and testamentary burdens within a single, internally consistent will
Enforcing or defending legacy claims after a death

The decisive difference: legal succession or a mere claim

Appointing an heir (§ 1937 BGB) makes the person you name the deceased’s universal successor. On death, the estate passes to them “as a whole” – item by item, debt by debt (§ 1922 BGB). The heir does not first have to acquire anything; they already have it, automatically, the moment the deceased dies. In return, they are also liable for the estate’s debts. Where there is more than one heir, a community of heirs arises that must then divide the estate between them.

A legacy (§ 1939 BGB) is something fundamentally different. The deceased confers a financial benefit on someone without making them an heir. This gives the beneficiary nothing more than a right: they may demand from the person charged with the legacy – usually the heir – that the item in question be handed over (§ 2174 BGB). The beneficiary does not become part of the community of heirs. They have no automatic access to the estate’s bank accounts or assets. Nor are they liable for the deceased’s debts. Their claim lies solely against the heir, who bears the burden unless the deceased has directed otherwise (§ 2147 BGB).

For your decision, this means: if someone is to share in the entire estate with all its rights and obligations, they belong in the will as an heir. If someone is to receive only a particular item – your grandfather’s watch, the plot of land, a sum of money – then a legacy is the right tool. That person then has nothing to do with administering the estate or with its debts.

The trap: individual items and the rule of interpretation in § 2087 (2) BGB

This is where the most common drafting mistake occurs. Many testators write sentences such as “My son shall receive my house in X as heir” and mean it literally: he is to be the heir. The law takes a different view where the deceased has left the person only individual items. Under § 2087 (2) BGB, in case of doubt it is not to be assumed that this person is to be an heir. That holds true even where the will expressly describes them as an heir. In this situation the law presumes a legacy.

This can have serious consequences where other heirs have also been appointed, or where intestate succession applies. According to the wording, the person was supposed to become an “heir”. In the end, however, they receive only a claim against the actual heirs – and no share in the rest of the estate, no say in decisions, no automatic possession. If you want to avoid this, your will must make clear whether the person is also to share in the remaining estate in addition to receiving the single item. In that case you need a defined share of the estate plus, where appropriate, a division directive. Alternatively, the single item really is meant to be the only thing they receive. The will must then clearly set this out as a legacy.

The middle course: the division directive

Often what testators really want is a third thing: the person is to remain a co-heir but receive a particular item as part of dividing up the estate. That item then counts towards their share of the estate; it does not come on top of it. The division directive exists for exactly this (§ 2048 BGB). The deceased may give directions for how the heirs are to divide the estate – for instance, that a particular asset is to go to a particular co-heir. Unlike a legacy, this creates no additional claim against the other heirs. A division directive presupposes that the person benefiting is already a (co-)heir in any event. It merely governs how the heirs distribute the shared estate among themselves.

Alongside this there is the testamentary burden (§ 1940 BGB). The deceased obliges the heir or the beneficiary of a legacy to do something – to tend a grave, say – without thereby giving anyone a claim of their own to enforce it. This is the right instrument where you want to require someone to do something but do not want to give anyone an enforceable claim in return.

When a legacy claim falls due and when it lapses

The beneficiary’s claim arises on the death (§ 2176 BGB) – regardless of whether the beneficiary yet knows of it. It is subject to the standard limitation period of three years (§ 195 BGB). The period begins at the end of the year. The claim must have arisen during that year. In addition, the beneficiary must have become aware, or without gross negligence ought to have become aware, of the benefit conferred on them and of the identity of the person charged with it (§ 199 (1) BGB). Alongside this, irrespective of such knowledge, a long-stop period of 30 years from when the claim arose applies to claims connected with a disposition on death (§ 199 (3a) BGB). A beneficiary who waits too long loses the claim. This happens in practice. Beneficiaries often have no idea that they need to take action at all.

A typical case from my practice

A client of mine wanted the family workshop to go to his daughter from his first marriage. His second wife was to receive the rest of his estate. His home-made will read: “My daughter shall receive, as sole heir, the workshop together with the land.” After his death, the wife and the daughter were at loggerheads for months: was the daughter now a co-heir to the entire estate, or was she to receive only the workshop? The will left only a single item. The statutory rule of interpretation in favour of a legacy therefore applied. The daughter received the workshop but no share in the rest of the estate. That was not what the father had intended. Clear wording would have avoided the dispute: either a defined share of the estate plus a division directive, or an expressly named legacy.

Common mistakes

Testators leave individual items to someone “as heir” without considering the rule of interpretation in § 2087 (2) BGB.
Testators confuse a legacy with a division directive, even though the two have completely different legal consequences.
The will names no one as charged with the legacy, even though there are several heirs. It remains unclear who exactly must fulfil it.
Beneficiaries underestimate that they have to enforce their claim themselves and actively against the heir – limitation period included.
Some overlook the fact that a beneficiary, unlike an heir, is not automatically liable for the estate’s debts. When drafting a will, this can be used to deliberate advantage.

Frequently asked questions

Do I have to use the word “legacy” in my will for it to be valid?

No, what matters is the deceased’s discernible intention, not the choice of words. The decisive point is that the will makes clear whether the person is to become an heir or is only to receive a single item. Where individual items are left to someone, the law presumes a legacy in case of doubt. That holds true even where the word “heir” appears in the text.

Is the beneficiary of a legacy liable for the deceased’s debts?

No. Only the heir is liable for the estate’s debts, because the heir steps into the deceased’s entire legal position. The beneficiary of a legacy has nothing more than a claim against the heir to the item left to them and takes no part in liability for the debts.

What is the difference between a legacy and a division directive?

A division directive presupposes that the person benefiting is already appointed as a (co-)heir. It merely governs how the heirs divide the shared estate among themselves – with no additional claim. A legacy, by contrast, confers a self-standing, additional claim against the heir. That holds true regardless of whether the person benefiting is themselves an heir.

How long does the beneficiary of a legacy have to assert the claim?

The claim arises on the death and, as a rule, lapses within three years. The period begins at the end of the year in which the beneficiary learned of the benefit conferred on them and of the person liable. Irrespective of such knowledge, a long-stop of 30 years from when the claim arose applies.

Can the same person be both appointed as an heir and left a legacy on top?

Yes, this is possible. The person can share in the estate as a co-heir with a defined quota and, in addition – over and above that quota – receive a particular item as a legacy. The will must, however, say so expressly. Otherwise there is a risk of reinterpretation: the benefit then counts merely as a division directive towards their share of the estate.

Your next step

Whether it is appointing an heir, leaving a legacy, making a division directive, or a combination of these – the wording decides it. Will your will later take effect the way you meant it to? Or will the courts have to interpret the wording against your wishes? Let me think your wishes through with you before anything is drafted, so that no dispute arises later. You will find more on the options for shaping a will and an estate in the inheritance law section – or arrange an initial consultation at my office straight away.

The next part of this series looks at how you can effectively account for, or limit, the compulsory portion owed to close relatives in your will.

This article provides general information and is no substitute for legal advice in an individual case. Last updated: 2026-10-18.

Christian Czirnich, Rechtsanwalt (attorney at law), Kirchseeon near Munich

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