Executor of the Estate under German Law

Executor of the Estate under German Law

Introduction

Upon an individual’s death, the estate (Nachlass) passes to one or more individuals who are referred to as "heirs" (principle of universal succession). See § 1922  German Civil Code (BGB). If there is more than one heir, there is a community of co-heirs (Erbengemeinschaft). See § 2032(2) BGB.

The heir (Erbe) or the community of co-heirs administers the estate and there is generally no other person (e.g. personal representative) involved in the administration of an 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. See § 2203 BGB

Basic Tasks, Powers and Duties of the German Executor

Unless otherwise provided by the testator, the executor`s tasks shall include:

Pursuant to these responsibilities, the German executor is entitled to take control of the estate, marshal the assets and dispose of all estate assets. See § 2205 (2) BGB.

His powers specifically include:

  • The power to sell or encumber estate assets (including real estate) without any heir`s consent; and
  • The power to invest proceeds of any sales.

While the executor’s powers are relatively broad, and executor shall not engage in any of the following:

  • Gift any estate assets (See § 2205 BGB); and
  • Use the estate to enrich himself.

The heir (Erbe) or the community of co-heirs cannot dispose of estate assets that are under the control of an executor. Further, any acquisition of estate assets without the consent of the executor is void, unless the person acquires the asset in good faith. See § 2211 BGB.

The executor is empowered to enter into contractual relationships and incur liabilities as necessary to ensure the proper administration of the estate. See § 2206 BGB. The executor is exclusively entitled to pursue legal action on behalf the estate. See § 2212 BGB. However, creditors of the estate may direct their claims either against the executor or against the beneficiary. See § 2213 BGB.

The executor is obliged to administer the estate efficiently and effectively in a manner that is consistent with the instructions of the testator. See §2216 BGB.

The executor is responsible for filing the inheritance tax return (Erbschaftsteuererklärung) for the heirs (and the legatees if the testator has instructed him to do so) and liable for payment of the assessed German inheritance tax (Erbschaftsteuer).

The executor must pay all liabilities of the decedent, funeral costs and administration costs out of the estate and fulfill the legacies. Subsequently, the executor must, upon demand, transfer to the heir for his free disposal any asset of the estate which is clearly not required for the executor to perform his duties. See § 2217 BGB.

Should there be more than one heir, the executor must divide the estate in an equitable manner. Unless there is an agreement amongst the heirs with respect to the division of assets, the assets shall be liquidated and the shares shall be distributed in cash.   

An executor may seek “reasonable remuneration” unless otherwise provided by the testator. See § 2221 BGB.

The executor has certain reporting requirements under German law. An executor must provide the beneficiaries with an estate inventory (Nachlassverzeichnis) without undue delay after accepting the appointment; the beneficiaries can also seek to be present when the inventory is made. See § 2215 BGB.

The heir has the right to claim information directly from the executor. Furthermore, the German executor is obliged to provide an accounting (Rechenschaftsbericht) to the beneficiaries when the estate is in a position to be closed. See § 2218 BGB

In principle the tasks, rights and powers of the executor are subject to modification by the testator. However, the testator may not release the executor from the duties imposed upon him by law and included in §§ 2215, 2216, 2218 and 2219. See § 2220 BGB

Executors with Limited Duties

The testator may appoint a Testamentsvollstrecker only for particular tasks which include:

Extended or Administrative Execution of the Estate

In the most cases, the executor is only called to administer the estate until the estate assets are distributed to the heirs. However, the testator may provide in his Will that:

  • The executor administers the estate or part thereof for longer periods (Dauervollstreckung); or
  • Another executor administers the estate or part thereof once the executor has settled the estate (Verwaltungsvollstreckung). See § 2209 BGB.

In such cases he is referred to as “durable executor” (Dauertestamentsvollstrecker, Verwaltungstestamentsvollstrecker). The testator may grant such durable executor the exclusive right to administer the estate and dispose of the estate assets. However, he may also limit his powers. For example, the testator could order that the executor shall only supervise the beneficiary and shall not take the estate into possession. 

Rationale for naming a durable executor can include:

  • The protection of the property of underage children;
  • The protection of property of a young or not financially experienced adult;
  • The protection against claims of creditors of the heir; and/or
  • The exclusion of the parental rights of a parent of a minor.

The durable executor is obliged to account to the heir at the end of the administration and upon his request at the end of each year of the administration.  

The durable execution of the will ends after 30 years following the death of the testator. However, the testator may direct that the administration is to continue until the death of the heir or of the executor. A testator could also specify a specific event that could trigger the conclusion of the administration. See § 2210 BGB.

Certificate of Executorship

Upon application, the probate Court (Nachlassgericht) will issue a German certificate of executorship (Testamentsvollstreckerzeugnis) to the executor. The German Certificate of Executorship confirms the identity of the Executor and shows any limitation to his statutory powers.

Court Supervision of the German Executor

In contrast to probate proceedings in common-law jurisdictions, the executor is not required to report to the probate court (Nachlassgericht) and the probate court has, generally, no right to supervise the administration of the executor or give him instructions. However, the probate court may dismiss an executor upon petition by an heir if it is shown that the executor engaged in a serious breach of conduct. (see § 2227 BGB). The executor is liable for any damage resulting out of a breach of his duties (§ 2219 BGB).

Rate this page
 
 
 
 
 
 
 
6 Rates (100 %)
Rate
 
 
 
 
 
 
1
5
5
 

Do you have any questions? We would be pleased to assist you. To make getting in touch with us as simple and efficient as possible for both parties, we ask you to primarily use our contact form for your questions. Please describe the matter as clearly as possible. You can also add attachments. After sending your inquiry, the attorney responsible will contact you either by telephone or by e-mail within 24 hours and, where necessary, pose further questions or submit a proposal for consultation.  

Of course, you can also call us directly to make an appointment for a personal consultation or telephone consultation (find contact details here). All potential clients will be informed in advance of any costs that may be incurred during the initial consultation

Formular
captcha
Attach documents to your message to us (max 5 MB).