Requirement of a German Certificate of Executorship and/or Certificate of Inheritance
There is no specific law that requires that a German certificate of inheritance (Erbschein) or German certificate of executorship (Testamentsvollstreckerzeugnis) be obtained and/or presented to administer an estate in Germany. Pramaticallly, heirs or executors will need to obtain a German certificate of inheritance or executorship (or both) to access and marshall assets in Germany.
Whether these documents are required will depend on the language used in the Will and the assets in the (German) estate.
Bank Accounts in Germany
In many situations, German banks, savings banks (Sparkasse) or cooperative banks (Genossenschaftsbanken) will not allow an heir or German executor to liquidate investments unless a German certificate of inheritance or a German certificate of executorship is provided. Nevertheless, such requirements are generally internal to the financial institutions as there is no specific law which prevents the heir or executor from proving his rights in a manner that differs from the certificate of inheritance (Erbschein). For example, an heir may prove his right by presenting an original copy of the will or contract of inheritance (Erbvertrag) with an Opening Protocol (Eröffnungsprotokoll), if the will clearly shows that he/she is entitled to access the funds (either as an heir or as an executor). U.S. letters testamentary or U.S. letters of administration are generally not recognized.
Furthermore, there may be other reasons why no German certificate of inheritance or executorship is required. Such reasons can include situations where there is
- a trans-mortem Power of Attorney (transmortale Vollmacht);
- a joint bank account (Gemeinschaftskonto) and each co-owner of the joint account had the right to dispose of the total balance of the account (ODER Konto); and
- a payable on death account (Vertrag zu Gunsten Dritter).
Real Estate in Germany
A German land registry (Grundbuch) will only register the new owner if his rights are either proven by way of a German certificate of inheritance or a notarized will which clearly confirms the heir or, if there is more than one heir, the co-heirs. See § 35 GBO. However, in some situations the new owner may also be registered on the basis of a notarized power of attorney which remains effective after the decedent`s death. If the property was given to an individual by means of legacy (Vermächtnis), the heir or executor may have to transfer the property to such legatee by way of a notarized contractual agreement (Vermächtniserfüllungsvertrag).
Partnerships and Corporations in Germany
Any partner of a German General Commercial Partnership (Offene Handelsgesellschaft) or limited liability partnership (Kommanditgesellschaft) must be registered in the German German Commercial Register (Handelsregister).
Upon the death of a general partner, the partnership is continued with the remaining general partner unless it was agreed in the partnership agreement that the partnership ends. § 131 Abs. 3 Satz 1 Nr. 1 HGB.
Upon the death of a limited partner, the partnership is, in the absence of any agreement to the contrary, continued with his heirs. see § 177 HGB. The death of a general or limited partner and the entry of his/her heirs into the company must be registered in the commercial register. See § 161 (2), § 143 (2), § 107 HGB.
If the shareholder of a German Limited Liability Company (Gesellschaft mit beschränkter Haftung) or Public Limited Company (Aktiengesellschaft) dies, the shares im the company pass to the heir (Erbe). Since the shareholders are not registered in the commercial register, the heir is not required to be entered in the commercial register. However, according to § 40 GmbHG, the list of shareholders to be submitted annually must be updated by the managing directors. The death of a managing director must be registered by all managing directors, §§ 78, 39 GmbHG.
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 (Erbe) 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.
In case of intestacy (gesetzliche Erbfolge), the applicant must state:
- the date of death of the deceased,
- the last habitual residence and citizenship of the deceased,
- the relationship on which his right of succession is based,
- whether and which persons exist or existed by whom he would be excluded from succession or his share of the inheritance would be reduced,
- whether and what dispositions mortis causa (Verfügungen von Todes wegen) of the deceased exist,
- whether any legal dispute concerning his right of succession is pending in a (German or foreign) court,
- if he has accepted the inheritance and
- his share in the estate. See 352(1) sentence 1 FamFG,
If the application is based on a will, the applicant must
- specify the disposition upon which his right of succession is based, and
- state whether and what other dispositions mortis causa of the testator exist, and
- provide the information specified in § 352 (1) sentence 1, number 1, 2 and 6 to 8 and sentence 2 FamFG. See See § 352(2) FamFG.
Furthermore, the applicant should state the law of the country that governs succession as determined under the European Succession Regulation.
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.
If the applicant does not have sufficient command of German, the the German Notary (Notar) or German Consul will verbally translate the full contents of the application document to English or, if the Notary or the Consul is not willing to do so, a sworn translator must be present when the Notary or Consul reads out loud the application document and translate it into English.
The German notary or German Consul will charge a statutory scale fee for his services. As the scale fee of a German Consul may be much higher than the fees of a German notary and many German Consulates are backlogged, the applicant should consider to travel to Germany for signing the application.
Supporting Documents
The applicant must file supporting documents with his application. See § 353(3) FamFG, Supporting documents generally include:
- Original copy of the death certificate (Sterbeurkunde);
- if not in court costody with a German probate court or already filed: 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 country, 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.
Objectively limited Certificate of Inheritance
If the estate comprises assets situated outside of Germany, the applicant may apply for a objectively limited certificate of inheritance. See § 352c FamFG. Such certificate of inheritance will be only effective with regard to the assets situated in Germany. The (only) benefit of such objectively limited Certificate of inheritance is that the fees are only calculated on the basis of the (gross) estate in Germany.
Please note: By applying for such an objectively limited certificate of inheritance, it cannot be avoided to file the Will for another jurisdiction with the German probate court or avoid certain issues which arise from the "principle of universal succession".
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 (internationale Zuständigkeit) 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 (örtliche Zuständigkeit) 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.
Notice to Interested Persons
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 (Betroffene), e.g. intestate heirs, devisees or an executor, and advise them of their right to apply for participation in the further proceedings. If the opening of the Will (Testamentseröffnung) did not occur before, the Probate Court will also send a certified copy of the Will and the opening protocol to all interested persons together with the application. This will give all interested parties the opportunity to raise objections.
Issuance of the Certificate of Inheritance
The certificate of inheritance will be issued if the probate court considers that the facts necessary to support the application have been established. See § 352e (1) FamFG. The decision shall be made by court order. See § 352e (1) FamFG.
If the decision contradicts the declared intention of a party, the decision shall be made known to the parties. See § 352e (2) FamFG. In this case, the court shall suspend the immediate effectiveness of the court order and postpone the issue of the certificate of inheritance until the court order becomes final. See § 352e (2) FamFG.
After the application has been filed, the probate court will also ask the applicant to fill out a form listing all estate assets. This estate inventory (Nachlassverzeichnis) is the basis for the calculation of the court fees, which depend on the (net) value of the estate.
Please note: Some courts will not issue the certificate before the court fees are assessed and paid.
Refusal to Issue of a German Certificate of Inheritance and Appeal
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 § 352e(1) FamFG.
The petitioner may appeal such an order and the Court of Appeal (Oberlandesgericht) will have to decide the matter.
Alternatively or in addition thereto, a Petition to determine heirship (Erbenfestellungsklage) may be filed with the district court (Landgericht). Such proceedings are more formal and, in contrast to the certificate of inheritance, the district court`s decision will (if not appealed) be final and will bind all parties of the proceedings (inter partes effect).
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. See § 353 FamFG.
