German Inheritance and Probate Law - FAQ

German Inheritance and Probate Law - FAQ

As lawyers specializing in cross-border probate law and international estate planning, we routinely provide legal analysis on German inheritance law and represent foreign clients in German probate courts. The article answers the most frequently asked questions with respect to German inheritance and probate law.

When does German inheritance law apply?

For all persons dying after August 16th, 2015 German courts will apply with regard to all questions pertaining to the estate of a person the European Succession Regulation (Europäische Erbrechtsverordnung), also known as "Brussels IV". The applicable law under the European Succession Regulation is that of the country of the deceased's habitual residence (gewöhnlicher Aufenthalt) at the time of death.

Are there any exceptions from this rule?

If the deceased was manifestly more closely connected with another state or had chosen to apply the law of his or her nationality or if the law of his habitual residence refers back to German law (renvoi). 

Does the European Succession Regulation also govern the applicable tax laws?

No. Other rules apply to the German inheritance tax (Erbschaftsteuer).

Does German inheritance law apply to the estate of a foreigner?

If the foreigner`s last habitual residence (gewöhnlicher Aufenthalt) was in Germany and he had not chosen the law of his nationality, German law governs succession of his worldwide estate.

How does German inheritance law work?

Under German inheritance law the estate (Nachlass) passes directly to the heir (Erbe) at the time of death. 

How is a will executed under German inheritance law?

Pursuant to § 2231 BGB, the testator can choose between the notarial will (Notarielles Testament) and  the holographic will (eigenhändiges Testament).

Does Germany recognize foreign wills?

Germany has ratified the Hague Convention on the Form of Testamentary Dispositions. Thus, in most cases, there are no issues with respect to the formal validity of a foreign Will.

Should a nonresident of Germany make a separate Will for his/her German assets?

While most foreign wills are recognized in Germany as valid as regards to form, it is often advisable to make a Will for the assets situated in Germany (situs will). 

How is a will revoked under German inheritance law?

A Will or part of a will (Testament) is revoked by a will, destruction (e.g. burning, tearing) by the testator or by the withdrawal of the Will from court custody.

Does a will become ineffective if the testator marries after he/she made the will?

Under German law, a Will is not automatically revoked (cancelled) if the testator marries after he/she made the Will. However, after the death of the testator, the omitted spouse who timely contests the Will receives a share equal to the intestate share (gesetzlicher Erbteil) unless it is established that the testator would have made the disposition even if he had known that that he would marry his later wife/husband.

Does a Will become ineffective if the testator has a child after he/se made the Will?

A Will is not automatically revoked if the testator has a child is born (or adopted) after the testator made the Will. If the omitted child contests the Will, it receives a share equal to the intestate share (gesetzlicher Erbteil) unless it is established that the testator would have made the disposition even if he had known that that he would have a child after he made the Will. 

Is a joint will permissable in German inheritance law? 

Spouses or registered same-sex partner (eingetragener Lebenspartner) can make a joint will (gemeinschaftliches Testament). A joint will is generally made on one document. It must be signed by both spouses or registered same-sex partners. However, only one spouse will generally write it (by his own hand). Many Joint Wills contain mutual dispositions upon death (wechselbezügliche Verfügungen).

Cam a joint will be revoked?

A joint Will can only be revoked by both spouses jointly, e.g. in a new Will, or by one spouse if he serves the revocation document to the other through a German notary (Notar)

Is a joint will ineffective if the marriage is divorced?

A Will in which the testator has provided for his/her spouse is ineffective if the marriage is divorced before the testator’s death. However, the Will is valid insofar, as it is to be assumed that the testator would have made it even in case of divorce. 

What is a mutual will and which effects does it have?

Spouses or registered same-sex partner (eingetragener Lebenspartner) can make a joint and mutual will (wechselbezügliches Testament). After the death of one spouse, a mutual testamentary disposition (wechselbezügliche Verfügung) of the other spouse cannot, in principle, be revoked and is binding. Consequently, later wills are often ineffective and many gifts made by the survivor can be claimed back after the death of the second spouse. 

Is an inheritance contract permissable in Germany and what are the formal requirements?

A contract of inheritance (Erbvertrag) is permissable in German law. However, in order to be effective, it must be signed in front of a German Notary (Notar)

Does German Law provide for a forced share?

Yes, German law provides for a forced share (Pflichtteil), also referred to as compulsory share (Pflichtteil), for certain privileged individuals. 

Who is entitled to the German forced share?

The descendants, the parents and the spouse may be entitled to the forced share.

How is the German forced share determined?

The German forced share amounts to half of the value of the intestate share. For additional information please see the article Forced Heirship under German Law

What rights has the surviving spouse in Germany if there is no Will?

In the case of intestate succession (gesetzliche Erbfolge) the surviving spouse is entitled to 25% of the estate if there is any surviving issue of the deceased. If the deceased is survived by his/her parents or their issue (i.e. sisters/brothers or nieces/nephews of the decedent) or grandparents, the surviving spouse receives 50 %. In all other cases, the spouse receives the total estate. The share of the spouse may receive an additional 25% share of the estate if there was no ante-nuptial contract between the spouses. For further information, please see the article Intestate Succession in Germany

What are the rights of the children of the deceased or other next of kin if there is no Will? 

If the testator did not make a will, the children receive a share of the estate under German intestacy rules. For further information, please see the article Intestate Succession in Germany

Can you inherit debt in Germany?

Under German law an heir (Erbe) inherits both assets and debts of the decedent. However, he can avoid personal liability for the debts. 

Who is called to administer the estate in Germany?

Pursuant to § 1922 BGB the estate (Nachlass) passes directly to the heir (Erbe) at the time of death. Consequently, he administers the estate himself unless the testator named an executor (Testamentsvollstrecker).

Who administers the estate if there is more than one heir? 

If there is more than one heir, the estate becomes the joint property of the community of co-heirs (Erbengemeinschaft) and the heirs jointly administer the estate. In principle, any act of administration requires a unanimous decision of the other beneficiary. However, some exceptions apply. 

Do German courts recognize a foreign personal representative?

A foreign personal representative will only be recognized in Germany if he qualifies as German executor (Testamentsvollstrecker), which may only be the case if he was named in the Will to settle the German estate.

How does the probate process in Germany work?

Pramaticallly, heirs or executors will need to obtain a German certificate of inheritance (Erbschein) or a German Certificate of Executorship (Testamentsvollstreckerzeugnis) or both to access and marshall assets in Germany.

What is a German certificate of inheritance?

The German certificate of inheritance (Erbschein) is a document issued by a German probate court, that states the identity of the heir and his respective share in the estate as well as any limitations to the heir's power of disposition over the estate, which may result from the ties on preliminary heir (Vorerbe) and subsequent heirship (Nacherbe) or from the appointment of a German executor (Testamentsvollstrecker). A German certificate of inheritance is often required to prove the heir's right of inheritance, especially when immovable property is part of the estate. 

What is a German certificate of executorship?

The German Certificate of Executorship (Testamentsvollstreckerzeugnis) states the identity of the German executor (Testamentsvollstrecker) and any limitations to his (statutory) powers.

Does the German probate court supervise the administration of the estate by the German executor or the German heirs?

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 grant relief upon petition by an interested person, e.g. dismiss an executor or determine the heirs. 

How do I get a copy of the will?

After the death of the testator, anyone having a holographic will (eigenhändiges Testament) in his possession is under legal obligation to deliver it immediately to the probate court. A testamentary disposition submitted to the probate court or taken from court custody of a Will (amtliche Verwahrung) is officially opened by the probate court following the death of the testator. The court will then send a certified copy of the Will to all interested persons (e.g. next of kin or beneficiaries of the will or a prior will) together with an Opening Protocol (Eröffnungsprotokoll). This proceeding is referred to as opening of the Will (Testamentseröffnung)

Wo do I get information on the estate and the administration of the estate?

If there is an executor, the heirs have an enforceable right to an estate inventory (Nachlassverzeichnis), an accounting and supporting information/documentation. If there is no excecutor, the heirs administer the estate themselves and there is generally no right to claim information from a co-heir (as each co-heir can receive the information directly from other persons, e.g. banks). 

Are trusts recognized in Germany?

German law does not allow for the transfer of assets located in Germany to a trust. However, a disposition in a trust pertainging to German assets does not necessarily have to be without effect. For example, a testamentary trust may be interpreted as a German legal instrument which has similar effects. For example, it may be interpreted as durable execution of the estate (Dauertestamentsvollstreckung)subsequent heirship (Vor- und Nacherbschaft), life estate / usufruct (Nießbrauch) or a combination thereof.

Does Germany have an estate tax?

Germany does not levy an estate tax (Nachlasssteuer)

Does Germany have an inheritance tax?

Yes, Germany has an inheritance tax (Erbschaftsteuer). For more information, please read our article German inheritance tax

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