Generally, German banks, land registries and other institutions do not recognize U.S. probate orders including U.S. Letters of Administration. Instead, German institutions typically require a German Certificate of Inheritance (Erbschein) or a German certificate of Executorship.
German Certificate of Inheritance
The German Certificate of Inheritance confirms the identity of the heir. Should there be more than one heir, the German Certificate of Inheritance identifies the respective share of the co-heir in the estate, § 2353 German Civil Code (hereinafter BGB).
The German Certificate of Inheritance shows any limitations to the heir's power of disposition over the estate. For example, when an executor is identified in a decedent’s will, there will likely be a limitation of the heir’s powers, which will be described in the Certificate of Inheritance. Pursuant to § 2365 BGB, there is a presumption that the person or persons identified as heirs in the Cer¬tificate of Inheritance have the right of inheritance as stated therein, which is not subject to limitations other than those stated. 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 not be a true heir. Of course, this protection is limited to good faith buyers with no prior knowledge of the inaccuracies contained in the Certificate. The German Certificate of Inheritance does not identify whether the heirs identified therein are entitled to the statutory forced share or a specific bequest. 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 claim back the document and demand revisions.
Obtaining a German Certificate of Inheritance
The competent court to issue a Certificate of Inheritance is the probate court (Nachlassgericht) at the place of the last residence or habitual abode of the deceased, § 343 Sec. 1 German Act on the Procedure in Family Matters and in Matters of Non-contentious Jurisdiction (hereinafter: FamFG). If the deceased was German national and had no residence or habitual abode in Germany when he died, the probate court in Schöneberg/Berlin is competent to issue the certificate of inheritance, § 343 Sec. 2 FamFG. If the deceased was not a German national and had no residence or habitual abode in Germany when he died, each court in which estate assets are located is competent to issue the Certificate. § 343 Sec. 3 FamFG.
The application for a Certificate of Inheritance must be signed by at least one heir. If there is an executor, the executor may also sign the application document. The role of administrator is not recognized (see below) and has no right to submit an application. The application does not have to be made in person and can also be signed by a representative (e.g. an attorney). Notarization of the entire application is not required. However, the applicant must affirm certain facts. For example, an applicant will be required to declare. that he is unaware of any rights of other parties that may be in conflict with the alleged entitlement to the inheritance. This affirmation must be notarized in front of a German Consul, a German court or a German notary. Accordingly, the application document is generally notarized. In some cases (e.g. because the heir is mentally incompetent), the court will, upon application, dispense with the affirmation requirement.
The applicant must file supporting documents with his application. Supporting documents generally include:
- Original or court certified copy of the will;
- Original or court certified copy of the grant of probate;
- Original or notarized copy of death certificate (Sterbeurkunde);
- Original or notarized copy of passport of deceased and applicant; and/or
- In case of intestacy: certificates proving the family relationship (e.g. marriage certificate, birth certificate, divorce judgement).
German death certificates, birth certificates and marriage certificates can be obtained from the local civil registration office (Standesamt). A divorce jugdement can be obtained from the court were the marriage was divorced.
Some courts request, that the documents are court certified or verified by a Hague Apostille Certificate. Additionally, translations may be requested if the judge is not fluent in English or any other language used in the supporting documents.
It is advisable, that the German notary or German Consul makes certified copies and attaches them to the application document.
As the German Certificate of Inheritance identifies the heirs and their respective share of the estate, the shares of the heirs must be determined prior applying for the German Certificate of Inheritance. German consulates generally require the applicant to fill out a questionnaire in order to determine the applicable law (from a German perspective) and the shares of the heirs. As not all potential beneficiaries qualify as “heirs”, this process can be complicated and lead to misunderstandings. Such problems can be avoided, if there is an executor of the estate. An executor can apply for a German Certificate of Executorship, which is comparable to U.S. Letters of Administration or English Grant of Probate (see next section). However, even in this case, a German Certificate of Inheritance is required, if there is real estate in the German estate and the Executor wants to transfer the property in the name of the beneficiary.
If the affirmation/application is made through a German Consulate, the applicant must confirm that the application document is filed with the court. The German Consul generally does not file the document with the Court, it simply provides the original (and a first certified copy) to the applicant. Generally, applicants retain a German lawyer as such representation makes communication with the Court far more efficient and accelerates the process.
After receiving the application and supporting documents, the Probate Court will send a copy of the application document and all supporting documents to all interested persons (e.g. intestate heirs). If no interested party objects in due course and the Court is convinced that the applicant has the right to receive the requested certificate, the Court issues the Certificate. 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.
The "German Grant of Probate": The Certificate of Executorship
Generally, there is no statutory administration of the Estate by an executor or administrator in German law. The Estate directly passes to the heirs upon the death of the decedent and the Estate is administered by the heir or, if there is more than one heir, to the community of co-heirs (Erbengemeinschaft).
However, if the testator has stipulated in his will that the Estate shall be administered by an executor, the Executor will receive, upon application, a German certificate of executorship (Testamentsvollstreckerzeugnis). An U.S. executor generally qualifies as German executor and will, upon application, receive a German Certificate of Executorship.
An U.S. administrator generally cannot obtain a German Certificate of Executorship and, thus, cannot effectively administer the Estate unless the heirs provide him with power of attorney.
The German Certificate of Executorship confirms the identity of the Executor and shows any limitation to his statutory powers:
- According to § 2203 BGB the German executor is called to execute the testamentary dispositions of the deceased.
- Unless otherwise provided by the testator, his tasks include the administration (§ 2205 BGB) and the distribution of the estate (see § 2204 BGB).
- He is entitled to take possession of the estate and is entitled to dispose of estate assets (see § 2205 section 2 BGB).
- The German executor is entitled to incur obligation with effect for the estate to the extent necessary for the proper administration of the estate (see § 2206 BGB).
- The German executor is exclusively entitled to undertake legal action with respect to the estate (see § 2212 BGB).
There is a presumption that the person identified as executor in the Certificate of Inheritance has the right to administer the Estate and dispose of estate assets unless any limitation is shown on the certificate. Additionally, § 2366 BGB protects those who acquire an item belonging to the estate from the executor named in the Certificate in good faith. They obtain title even though the transferor is not the true executor, unless they had knowledge of the inaccuracy of the certificate of executorship.
Please note: Just as the Certificate of Inheritance, the German certificate of executorship is no final court decision.
A Certificate of Executorship does not identify the heirs and their shares to the estate.
The procedures for obtaining the German certificate of executorship are very similar as the procedures for obtaining a German certificate of inheritance, however, in many cases faster and less complicate.
