Wills in Germany

Wills in Germany

A Will represents the most fundamental and widely used instrument in estate planning. The simple will is also essential to ensure that an individual’s final wishes are carried out efficiently with minimum expense and delay. This article outlines the basic principles of German law relating to wills and includes links to additional information.

Restrictions on the Testamentary Freedom 

Generally, a testator is free to determine the distribution of his/her property upon death by means of a testamentary disposition. In other words, the testator is free toi appoint heirs and to assign shares in his/her estate as he/she sees fit. 

The German forced share (Pflichtteil) is only a claim in money against the heir and failure to provide for the forced heir generally does not invalidate the Will. A testator is also free to modify or revoke a testament prior to death unless he is bound by contract of inheritance (Erbvertrag) or by mutual will

Capacity to make a will under German law

Every person who has reached the age of sixteen can generally make a will. See § 2229 (1) of the German Civil Code (BGB). A person incapable of understanding the testamentary disposition process due to mental incapacity including unsound mind, temporal derangement, and/or dementia cannot make a valid will. § 2229 (3) BGB. Whoever claims that the testator lacked testamentary capacity carries the burden of proof.

Validty of a Will as Regard to Form under German Law

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

  • the public will (Öffentliches Testament),
  • and the holographic will (Eigenhändiges Testament).

Holographic will

Pursuant to § 2247 BGB a testator may make a valid will wholly by his or her own handwriting and signature. See § 2247 (1) BGB. Attestation and/or orwitness signatures are unnecessary. However, a will written on a typewriter or computer is not deemed to be handwritten even if it is signed by the testator.

A valid holographic will requires that the will be handwritten and that the signature of the testator be made personally by the testator and that such signature follows the end of the text. See § 2247  BGB.

A signature on an envelope containing a testament may be sufficient if the letter is sealed.

The testator should state the time and place where he/she made the will. However, if the testator fails to do so, the testament is still valid, if the time and place can be determined otherwise. See § 2247 (5) BGB.

The signature should contain the first name and the surname of the testator. See § 2247 (3) BGB. However, failure to include such information may not necessarily be fatal if the identity of the testator can be clearly determined and that the testator intended to make a will. See § 2247 (2) BGB.

Codicils and amendments to a testament must always be signed separately. 

Public Will

A public will (öffentliches Testament) is made by the testator declaring his last will to a German Notary (Notar) or handing the Notary a document with the statement that the document contains his last will. The testator may hand over the document either unsealed or sealed; it is not required to be written by him. See § 2232 BGB

In most cases, the will is discussed with the notary prior to the execution appointment as the notary will typically draft the will.

The writing does not need to be written by the testator in the case of a notarial will. It is sufficient that the notary's recording is approved and signed. See § 131 BeurkG.

Estate planning consideration: The heir can be registered as new owner of real estate in a German land registry (Grundbuchamt), if the owner of such real estate made a Public Will, which names that person as heir and the public will is "opened" by the German probate court (opening of the Will) No German certificate of inheritance is required. Accordingly, it is often advisable to make a Public Will if the testator owns real estate in Germany.

Wills signed in front of a German Consul are valid as notarized Will. See §§ 2 and 10 Paragraph 2 of the Consular Act. Such "Consular Wills" are quite rare as most German Consulates do not provide assistance with making a Will. 

Irregular wills

In emergency situations, particularly where the testator is close to death, the testator may make a will under special requirements. For example, wills can be made in certain situations in the presence of the mayor (see § 2249 BGB) or in the presence of three attesting witnesses. See §§ 2250, 2251 BGB

Recognition of Foreign Wills as Regard to Form

Germany has ratfied the Hague Convention on the Form of Testamentary Dispositions. As a consequence, a foreign will is valid in Germany with respect to form if its form complies with the internal law:

  • of a nationality possessed by the deceased, either at the time when he made the disposition, or at the time of his death, or
  • of the place where the deceased made it, or
  • of a place in which the deceased had his domicile or habitual residence either at the time when he made the disposition, or at the time of his death, or
  • so far as immovables are concerned, of the place where they are situated or
  • of the applicable law with respect to the succession or the law that would have been applicable at the time of the testamentary disposition.

Testamentary dispositions in a German Will

Generally, the testator is free to make a will and to dispose of his/her property upon death as he/she sees fit (testamentary freedom). However, such a will must comply with German law. The testator may:

  • Appoint an heir (Erbe);
  • Appoint a legatee (Vermächtnisnehmer);
  • Name a preliminary heir (Vorerbe) and subsequent heir (Nacherbe);
  • Exclude a forced heir (Pflichtteilsberechtigter) from succession; 
  • Impose a burden on an heir (Erbe) or a legatee;
  • Deprive a forced heir (Pflichtteilsberechtigter) from the forced share (Pflichtteil);
  • Make provisions with regard to the distribution of the estate;
  • Appoint an executor (Testamentsvollstrecker); 
  • Order extended execution of the Will (Dauertestamentsvollstrecker) and appoint a durable executor (Dauertestamentsvollstrecker); or
  • Create a (family) foundation (Stiftung). 

Please note: Trusts are virtually unknown in German Civil law. Accordingly, it is not possible to transfer assets located in Germany to a trust upon death.  However, such a transfer does not necessarily have to be without effect. The trust may be interpreted as a German legal instrument which has similar effects, e.g. a foundation, durable execution of the estate or subsequent heirship. 

Revocation of a Will

The testator may at any time revoke or modify a will or part of a Will. See § 2253 BGB.

A will or part of a will is revoked only by the following:

  • A later Will (§§2254, 2258 BGB);
  • Destruction (e.g. burning, tearing) of the Will by the testator. See § 2255 BGB; or
  • By withdrawal of the testament from court custody. See § 2256 BGB.

If revocation is made by Will, the revocation itself may be revoked (e.g., by destruction). In this case the original Will revives. See § 2257 BGB

Please note: The right to revoke a last Will and Testament may be limited by way of a contract of inheritance or a mutual will.

In case of divorce, there is an presumption that the testator wanted to revoke the dispositions in favour of the spouse. However, the spouse may prove that it was not the testator`s intention to revoke the will in case of divorce.

Joint Wills

Pursuant to §§ 2265-2273 BGB, spouses or registered same-sex partners can make a joint Will (gemeinschaftliches Testament). A joint holographic will may be handwritten by only one spouse. However, both spouses have to sign the will in accordance with § 2247 BGB. A joint notarial or Consular Will may be made in accordance with §§ 2231(1), 2232 BGB.

Mutual Wills 

Mutual Wills are permissable under German law. However, not all testamentary dispositions in a mutual Will are binding. Instead, only mutually connected dispositions are binding. A testamentary disposition in a joint will is mutually connected to another testamentary disposition if it would not have been made without that disposition. See § 2270(1) BGB.

According to § 2270(2) BGB, unless otherwise provided, it is presumed that a testamentary disposition is mutually connected to another testamentary disposition if the estate shall pass to the surviving spouse and after the death of the surviving spouse to a relative or otherwise related person (e.g. friend) of the first deceased spouse.

Pursuant to § 2270(3) BGB, § 2270(1) BGB does not apply to testamentary dispositions other than those concerning

Any other testamentary disposition, e.g. regarding the appointment of an executor (Testamentsvollstrecker) is not mutual.

If a reciprocal dispositions (wechselbezügliche Verfügung) is revoked or invalidated, the corresponding testamentary disposition is invalid as well. See § 2270(1) BGB.

During the lifetime of the other spouse, each spouse may revoke his own disposition by informing the other testator by way of notarial letter.

After the death of one spouse, a reciprocal disposition (wechselbezügliche Verfügung) of the other spouse cannot, in principle, be revoked and is binding. However, if the surviving spouse disclaims the inheritance, he is free to change the Will. See § 2271(2) 1 BGB

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