German Inheritance Law - Introduction

German Inheritance Law - Introduction

The article answers the most frequently asked questions with respect to German Inheritance law.

When does German Inheritance Law apply?

For all persons dying after August 16th, 2015 German courts will apply the European Succession Regulation (Brussels IV). Under the regulation, German courts will apply the law of the state in which the deceased dies habitually resident (regardless of whether it is a Brussels IV state) unless the deceased was manifestly more closely connected with another state or had chosen to apply the law of his or her nationality.

How is a Will executed under German Inheritance law?

Pursuant to § 2231 BGB, the testator can choose between two forms of regular Wills:

Does Germany recognize Foreign Wills?

Germany has ratified the Hague Convention on the Form of Testamentary Dispositions. Thus, in most cases, there are no issues with respect to the formal validity of a foreign Will.

Are there any Limits to the Testamentary Freedom in German Inheritance Law?

In principle, under German inheritance law, the testator is free to appoint any person as his beneficiary or to disinherit his (intestate) heirs, e.g. his offspring or spouse. However, there are some exceptions. The most relevant exception is the forced share (Pflichtteil).

Who is entitled to the German Forced Share?

Pursuant to § 2303 of the German Civil Code (BGB) the descendants, the parents and the spouse may be entitled to the forced share.

How is the German Forced Share determined?

The German forced share amounts to half of the value of the intestate share. See § 2303(1) BGB. For additional information please see the article Forced Heirship under German Law

How is a Will revoked under German Inheritance Law?

A Will or part of a Will is revoked by a Will (§ 2254 BGB), destruction (e.g. burning, tearing) by the testator (§ 2255 BGB) or by the withdrawal of the testament from court custody (§ 2256 BGB).

Is a Joint Will permissable in German Inheritance Law? 

Spouses or registered same-sex partner (eingetragener Lebenspartner) can make a joint will (gemeinschaftliches Testament). A joint will is generally made on one document. It must be signed by both spouses or registered same-sex partners. However, only one spouse will generally write it (by his own hand). Many Joint Wills contain mutual dispositions upon death.

How is a Joint Will revoked?

A joint Will can only be revoked by both spouses jointly, e.g. in a new Will, or by one spouse if he serves the revocation document to the other through a German notary. 

Is a Joint Will ineffective if the Marriage is divorced?

A Will in which the testator has provided for his/her spouse is ineffective if the marriage is divorced before the testator’s death. However, the Will is valid insofar, as it is to be assumed that the testator would have made it even in case of divorce (§ 2077 BGB). 

Is a Mutual Will permissable?

Spouses or registered same-sex partner can make a joint and mutual will (Gegenseitiges Testament)

Can a Joint and Mutual Will be revoked by the Survivor after the Death of the first dying Spouse?

After the death of one spouse, a mutual testamentary disposition of the other spouse cannot, in principle, be revoked and is binding. However, if the surviving spouse renounces the inheritance, he is free to change his will. See § 2271(2) BGB.

Intestacy in Germany: What rights has the surviving Spouse in Germany if there is no Will?

In the case of intestate succession (gesetzliche Erbfolge) the surviving spouse is entitled to 25% of the estate if there is any surviving issue of the deceased. If the deceased is survived by his/her parents or their issue (i.e. sisters/brothers or nieces/nephews of the decedent) or grandparents, the surviving spouse receives 50 %. In all other cases, the spouse receives the total estate. The share of the spouse may receive an additional 25% share of the estate if there was no ante-nuptial contract between the spouses.

Intestacy in Germany: What are the Rights of the Children of the Deceased or other next of Kin if there is no Will? 

If the testator did not make a will, the children receive a share of the estate under German intestacy rules. If the deceased did not name them in his will, the children will receive the forced share (see below).

How do you find out if I am Beneficiary under a Will in Germany?

Anyone who is in possession or control of a will is required to submit it to the Court at the place of the last habitual residence of the decedent. The Probate Court (Nachlassgericht) will send a court certified copy of the Will to all interested persons, which includes all beneficiaries under the Will and intestate heirs.

Who is called to administer the Estate in Germany?

Pursuant to § 1922 BGB the heir (Erbe) becomes the owner of the deceased's estate upon the testator’s death. Unless the testator named an executor (Testamentsvollstrecker) the heir administers the estate and there is no personal representative.

What happens if there is more than one Heir? 

If there is more than one heir, the estate becomes the joint property of the community of co-heirs (Erbengemeinschaft) and the heirs jointly administer the estate. In principle, any act of administration requires a unanimous decision of the other beneficiary. However, some exceptions apply.

Do German courts recognize a foreign Personal Representative?

A foreign personal representative will only be recognized in Germany if he qualifies as German executor (Testamentsvollstrecker), which may only be the case if he was named in the will to settle the German estate.

How does the Probate Process in Germany work?

Pramaticallly, heirs or executors will need to obtain a German certificate of inheritance or executorship (or both) to access and marshall assets in Germany. 

What is a German Certificate of Inheritance?

The German certificate of inheritance (Erbschein) states the identity of the heir and his respective share in the estate as well as any limitations to the heir's power of disposition over the estate, which may result from the ties on preliminary heir (Vorerbe) and subsequent heirship (Nacherbe) or from the appointment of a German executor (Testamentsvollstrecker). It is often required to prove the heir's right of inheritance, especially when immovable property is part of the estate. 

Who administers the Estate in Germany?

The heir (Erbe) or the community of co-heirs (Erbengemeinschaft) administers the estate and there is generally no other person (e.g. executor, administrator) involved in the administration of the estate. However, the testator may appoint an executor (Testamentsvollstrecker) or allow somebody else (e.g. the probate court) to appoint such executor who shall execute the testamentary dispositions of the deceased. 

Can a foreign executor obtain a German Certificate of Executorship?

A foreign executor is entitled to receive a German certificate of executorship if it can be established that it was the testator`s intention that he should settle the German estate and he was not simply named as executor because a personal representative is required under which the Will was made. 

What does "opening of the Will" mean?

A testamentary disposition submitted to the probate court or taken from safe custody is officially opened by the probate court following the death of the testator. The court will then send a certified copy of the Will to all interested persons together with an "opening protocol". This proceeding is referred to as opening of the Will (Testamentseröffnung)

Are Trusts recognized in Germany?

German law does not allow for the transfer of assets located in Germany to a trust. However, a disposition in a trust pertainging to German assets does not necessarily have to be without effect. For example, a testamentary trust may be interpreted as a German legal instrument which has similar effects. For example, it may be interpreted as durable execution of the estate (Dauertestamentsvollstreckung)subsequent heirship (Vor- und Nacherbschaft), life estate / usufruct (Nießbrauch) or a combination thereof.

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