Content and Legal Effect of the German Certificate of Inheritance
The content and legal effect of a German Certificate of Inheritance is described in §§ 2353 through 2370 of the German Civil Code (BGB) and §§ 352 through 355 of the Act on Proceedings in Family Matters and in Matters of Non-contentious Jurisdiction (FamFG).
Content
A German Certificate of Inheritance (Erbschein) shows the name of the heir (Erbe) and, if there is more than one heir, the respective shares of the co-heir (Miterbe) in the estate. See § 2353 BGB. The German Certificate of Inheritance also confirms any limitations on the heir's power of disposition over the estate. For example such limitations can include:
- that the estate shall be administered by a German executor (Testamentsvollstrecker) who has the exclusive right to dispose of estate assets; or
- the testator has ordered durable execution of the estate (Dauertestamentsvollstreckung); or
- that the testator has ordered preliminary and subsequent heirship (Vor- und Nacherbschaft) and the preliminary heir`s (Vorerbe) right are limited due to a subsequent heir’s (Nacherbe) interest.
Please note: The German Certificate of Inheritance does not confirm whether there is a legatee (Vermächtnisnehmer) or a forced heir (Pflichtteilsberechtigter) as such person(s) may claim fulfillment from the heir/s. A Certificate of Inheritance also does not state the identity of a German executor as this is stated in a German certificate of executorship (Testamentsvollstreckerzeugnis).
Legal Effect
Pursuant to § 2365 BGB, there is a presumption that the person or persons identified as heirs in the Certificate of Inheritance have the right of inheritance as stated therein, which is not subject to limitations other than those stated. The presumption is rebuttable.
Additionally, § 2366 BGB protects those who acquire an item belonging to the Estate from the person named as an heir in the Certificate. Such buyers obtain title even if the transferor is later found to have not been a true heir. Of course, this protection is limited to good faith buyers with no prior knowledge of the inaccuracies contained in the Certificate.
Procedure to obtain a German Certificate of Inheritance
The procedure for obtaining a German Certificate of Inheritance is described in the German Act on the Procedure in Family Matters and in Matters of Non-contentious Jurisdiction (FamFG).
Application and Affirmation in Lieu of an Oath
While the German probate court (Nachlassgericht) will issue the certificate of inheritance, the application can also be made through:
- a German notary (Notar) or
- a German Consul (Konsul).
It may be presented by any
- heir or co-heir,
- German executor (Testamentsvollstrecker) and/or
- creditor.
Please note: A foreign administrator has no right to submit an application and not all foreign executors qualify as German executor.
As the German Certificate of Inheritance identifies the heirs and their respective share of the estate, the application document must show:
- the law of the country that governs succession,
- the names of the heir/s and their shares in the estate,
- if there are any limitation of the heir/s succession rights.
Please note: In simple matters, the German notary or German Consulate drafts the application. However, in more complex matters, a German lawyer specializing in international probate law should prepare the document.
The application does not have to be made in person and can also be signed by an attorney-in-fact (e.g. German lawyer) or other representative, e.g. a (German) guardian (Vormund) or custodian (Betreuer).
However, the applicant must personally affirm in lieu of an oath certain facts such as that he is unaware of any rights of other parties that may be in conflict with the alleged entitlement to the inheritance. This affirmation in lieu of an oath (eidesstattliche Versicherung) must be notarized in front of a German Consul, a German court or a German notary (Notar). Accordingly, the application document is generally notarized.
Please note: Only in exceptional cases (e.g. because the heir is mentally incompetent), the court will, upon application, dispense with the affirmation requirement.
Text of the application / affirmation must be notarized in German. If the applicant is not in sufficient command of German, the German Consul / German notary (if he/she is in sufficient command of the English language) or a professional translator will verbally translate the full contents of the application / affirmation to English.
Supporting Documents
The applicant must file supporting documents with his application. Supporting documents generally include:
- Original copy of the death certificate (Sterbeurkunde);
- if not in court costody with a German probate court: Original Will (Testament) or contract of inheritance (Erbvertrag);
- If the original Will was filed with a foreign probat court: Court certified copy of the Will and a foreign court document stating that the Will is in foreign court custody (e.g. grant of probate).
In case of intestate succession (gesetzliche Erbfolge), certificates proving the family relationship should be filed. Such documents typically include:
- marriage certificate (Eheurkunde),
- birth certificate (Geburtsurkunde) or
- divorce judgement (Ehescheidungsurteil).
Should an applicant not want to file original documents, the applicant should request that the German notary or German Consul makes certified copies which can be attached to the application.
As German courts may require proof of authenticity of any document issued by a foreign countrym the petitioner should consider to obtain a Hague apostille (Haager Apostille) or legalization (Legalisation).
Additionally, as many German probate judges are not fluent in English (or any other language used in the supporting documents), the applicant should consider obtaining translations.
Filing with the German Probate Court
If the affirmation/application is signed in front of a German Consul, the German Consul does not file the application document with the Court. Instead, he/she simply provides the original (and a first certified copy) to the applicant, who must file the document with the Court. Generally in cross border estate matters, applicants retain a German lawyer as such representation makes communication with the Court far more efficient and accelerates the process.
Jurisdiction of German Courts
In general, German courts have jurisdiction if the deceased had his habitual residence at the time of death in Germany. See Art. 4 of the European Succession Regulation.
Where the habitual residence of the deceased at the time of death is not in Germany and no other member State of the European Succession Regulation, German courts have jurisdiction to rule on the succession as a whole in so far as:
- the deceased was a German citizen at the time of death; or, failing that,
- the deceased had his previous habitual residence in Germany at the time the court is seised, a period of not more than five years has elapsed since that habitual residence changed. See Art. 10 para 1 of the European Succession Regulation.
Where no court in a Member State has jurisdiction pursuant to Art. 10 para 1 of the European Succession Regulation, German courts have jurisdiction with regard to such assets that are located in Germany. See Art. 10 para 1 of the European Succession Regulation.
If the testator validly elected German law, the beneficiaries may enter into an agreement that German courts have jurisdiction.
Venue
The proper venue is the probate court (Nachlassgericht) at the place of the last habitual residence (gewöhnlicher Aufenthalt) of the deceased. See § 343(1) FamFG.
If the deceased had no habitual residence in Germany when he died, the probate court at the place of his last habitual residence is the proper venue. See § 343(2) FamFG.
If the deceased never had a habitual residence in Germany, the probate court in Schöneberg/Berlin is the proper venue. See § 343(3) FamFG.
Issuance of the Certificate of Inheritance
After receiving the application and supporting documents, the Probate Court will send a copy of the application and all supporting documents to all interested persons (e.g. intestate heirs). This will give all interested parties the opportunity to raise objections.
If the probate court is convinced that the applicant has the right to receive the requested certificate, the Court issues the Certificate. See § 352(1) FamFG.
The court will also ask the applicant to fill out a form listing all estate assets (Nachlassverzeichnis), which is the basis for the calculation of the court fees. Some courts will not issue the certificate before the court fees are assessed and paid.
Refusal to Issue of a German Certificate of Inheritance
If the probate court is not convinced that the applicant has the right to receive the requested certificate, it will issue a court order stating the grounds for refusal and give notice to the parties of the proceedings. See § 352(1) FamFG.
The petitioner may appeal such an order.
Revocation of the Certificate of Inheritance
The German certificate of inheritance should not be considered a final court order. If at any time it turns out that is the certificate is incorrect, the court may revoke the certificate and claim back the document.
