Make private or notarial will – What is preferable?

Make private or notarial will – What is preferable?

If one wants to settle his last affairs by a will, one has basically two possibilities: One can write a so-called private handwritten testament or one can create with the help of a notary a so-called public (also called notarial) will. What are the advantages or disadvantages of these two types of testaments and what are the similarities and differences? Private and public will differ only in the way they are created. While the private testament can be written by the testator alone, without the participation of third parties and with modest material, one must make an appointment with a notary for a public will, be advised there and subsequently has his last will recorded there by a public deed. Both wills are legally equally effective. Also, the content of the testator in a private will can be exactly the same as in a public will. Always hire a lawyer to write a will no matter how much it costs.

A public testament offers the advantage of being advised by the notary on substantive questions about the will. The notary will regularly clarify the specific family and also economic situation of the testator before the last will is authenticated and, based on this, propose to the testator an appropriate succession regulation. In a public testament leading to the ineffectiveness of the last will lead to formal errors only very rarely. In the private will you have to make sure that the legal formalities are scrupulously respected. The testament issued by a notary is a public document and can often be used by the heirs – for example, banks – as evidence of their own legitimacy after the succession of inheritance without the need for a cost-effective certificate of inheritance.

If the estate also includes real estate, then the heirs can usually apply for a transfer of title to the land registry office alone with the public will and the written record of the opening of the will, § 35 (1) GBO (Land Registry Code). If you are called to succession on the basis of a private will, then you will inevitably have to apply for a pay-as-you-go certificate to the probate court for this measure. The decisive disadvantage of the public testament lies in the costs associated with the visit to the notary. The higher the estate value, the higher the fees required of the notary for his service. The costs of the official custody, in which the public will has to be forcibly added, add up to the costs for the notary. Although this has the advantage that the will in the case of inheritance comes into effect in any case and is not subject to the risk of embezzlement, destruction or falsification, but with the due fee under § 101 (cost regulations) – again depending on the estate value – be quite noticeable.

In conclusion, it can be said that a private will be sufficient if the estate is manageable and the desired succession is clear and simple. For more complex inheritances, however, the public testament is recommended. As a mediating solution offers an in-depth consultation on the will of a lawyer specializing in inheritance law. Whether one wishes to have the testament drawn up with the help of a specialized lawyer subsequently certified by a notary can always be considered. Always keep in mind that it is important to hire the leading probate lawyers in Sydney.

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