1. Introduction
Taking over a commercial business through inheritance can bring both opportunities and risks.
The heirs not only take over the testator’s assets, but also his or her liabilities. They move completely into the legal position of the deceased (so-called universal succession).
This can lead to significant financial risks, especially if the trading business runs a loss or has (old) debts.
The liability of heirs is regulated in various laws, in particular the Civil Code (BGB), the Commercial Code (HGB) and the Tax Code (AO)..
2. Transfer of a commercial transaction by way of inheritance
According to Section 1922 of the German Civil Code (BGB), when a person dies, their entire assets pass to their heirs.
This also includes a commercial transaction that the testator carried out. The heirs assume the legal position of the testator and assume both his rights and his obligations. If you die, you essentially become the owner of an ongoing business (with all the liability consequences).
They are liable for the testator’s debts without limitation with their own assets as well as, of course, for the newly created liabilities relating to the business operations.
3. Risks and liability with transfer
The liability of heirs is regulated in Section 1967 of the German Civil Code (BGB). You have unlimited liability for the estate’s liabilities, i.e. the testator’s debts.
This means that they are liable for all of their assets, not just the inherited assets.
In commercial law, Section 27 of the German Commercial Code (HGB) supplements this regulation. If the heirs continue the commercial business under the previous company, they are liable to the business creditors without limitation and without the options for limiting liability to the estate under the German Civil Code (BGB).
Section 75 AO may also apply under certain circumstances.
4. Approaches to limiting and limiting liability
There are various ways to limit or limit the liability of heirs.
One possibility is to abandon the commercial transaction within three months of becoming aware of the inheritance in accordance with Section 27 Paragraph 2 of the German Commercial Code (HGB).
Another option is to open insolvency proceedings against the testator’s assets (estate insolvency proceedings) if rejection is no longer possible.
In addition, the heirs can sell or lease the company or try to get the company into profitable territory through an interim managing director.
5. Conclusion
Taking over a commercial business through inheritance can involve significant financial risks.
The heirs have unlimited liability for the testator’s debts using their own assets.
However, there are various ways to limit or limit this liability.
It is therefore important to obtain comprehensive information about the associated risks and liability issues and, above all, to obtain legal advice before taking over a commercial business through inheritance.
It should be noted that the approaches shown are only a brief overview and that each company takeover in the context of an inheritance must be assessed and treated individually.
This article does not represent specific and individual legal advice, but rather only provides a rough initial overview of the very complex legal matter described. You can only obtain legal certainty for your specific case constellation through coordinated examination and advice from an expert lawyer.
I would be happy to assist you as a lawyer and specialist lawyer for a legal assessment and assessment of your case and represent your interests assertively and resolutely. Suppliers, creditors, tax authorities, etc. Please feel free to contact me by phone or write to me.
I advise nationwide on site or via Zoom as a specialist lawyer in the legal areas of commercial and corporate law, tax law and insolvency law, especially in the cities and metropolitan areas around Stuttgart, Heilbronn, Karlsruhe, Freiburg, Ulm, Augsburg, Munich, Frankfurt, Wiesbaden, Saarbrücken, Kaiserslautern , Bonn, Wuppertal, Duisburg, Nuremberg, Münster, Saarbrücken, Düsseldorf, Cologne, Dortmund, Hanover, Kassel, Leipzig, Dresden, Bremen, Hamburg and Berlin.
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