Probating German Wills in California

Probating German Wills in California

Assets with a California and/or non-specific U.S. situs may be subject to probate in California. To avoid the imposition of California’s intestate succession rules, a German heir will want to seek the recognition of a German will in California probate court. This article shall discuss the process by which a California court determines validity of a German will and the subsequent probate process.

Validity of a German Will

A will created by a German citizen in Germany will be entered into probate if it is consistent with California Probate Code Sections 6110-6113. The Probate Code provides for the recognition of three types of wills including

  • witnessed wills,
  • holographic wills and statutory wills.

A witnessed will is merely a document that the testator signs or affirms his/her signature in the presence of two disinterested witnesses who also sign the will. A holographic will is a will drafted by the testator in his/her own handwriting. In addition to these wills, California Probate Code Section 6240 provides for statutory wills. A statutory will is a boilerplate form which the testator uses by filling in the blanks to complete the substantive sections. The statutory will must be signed in front of two witnesses who must also sign the will. Should the German will comply with these various code sections, it will be entered into probate in California.

The inheritance laws of Germany differ in many respects from those of California and a will valid under the laws of Germany may not comply with California Probate Code Sections 6110-6113 and/or 6240. For example, a notarized will in Germany may not include two disinterested witness and is unlikely to be completely in the testator’s own handwriting. Should a German will fail to comply with California probate law, the heirs and/or interested parties will have to include confirmation of the will’s compliance with the laws of Germany. California Probate Code Section 6113 holds that a will is valid if it is in compliance with the laws where the decedent resided, kept a residence or was a national. The will may also be valid if it can be shown that the will was executed in compliance with the laws of the place where it was executed. Unfortunately, the California Probate Code fails to articulate what proof is required to show that the will is in compliance with foreign law. For our clients, we typically include with the probate petition a declaration from a German licensed attorney which cites the applicable legal authority and attests to the will’s compliance with German law.

Appointment of an Executor or Administrator

If the German will that complies with U.S. law and/or German law (assuming that the testator was a German national and/or the will was drafted in Germany), it should be entered into probate. At the hearing to determine whether the will is entered into probate, the Court will also appoint an executor or administrator of the estate. A German will subject to probate in California may nominate a foreign individual as executor which raises the issue of whether a foreign individual residing abroad can serve as executor. Pursuant to California Probate Code Section 8402(b) a foreign individual may serve as executor. California is somewhat unique in this respect as many U.S. states do not allow foreign residents/nations to serve. Should the will fail to name an executor, an administrator will be appointed. The administrator will often be an interested party and/or a California attorney. Unlike a named executor, the administrator must be a resident of California.

Conflict of Laws Issues

The probating of German wills and/or estates of German nationals often require conflict of laws analysis. Many issues such as distributions and interpretation can turn on a Judge’s willingness to entertain conflict of laws analysis. For example, Germany’s forced share regime is unknown in California and a testator may dispose of assets in any manner he/she sees fit. Accordingly, a California Judge will distribute assets to the beneficiaries identified in the will without any consideration that the will may have been drafted taking into consideration the forced share regime. The issue of adopted and/or half siblings inheriting under a will should generally be interpreted under the laws of Germany when the decedent was domiciled in Germany. However, should the issue fail to be raised, the Court will often simply refer to California law. Judges and courts in California are often overburdened and short on time and resources which often results in an unwillingness or inability to entertain substantive conflict of laws arguments.

Entering a will into probate in California simply requires proof that the will complies with California and/or German law. Once the will is entered into probate an administrator (if an executor is not named) or executor shall be appointed to administrate the estate. Any contentious matters associated with the administration of the Estate will likely be considered by applying California law despite the fact that a conflict of laws analysis refers to German law. Accordingly, German individuals with assets in the U.S. should consider an estate plan that provides explicit instructions for California situs assets that are in compliance with California law.

Administration

Once the will is entered into probate and an executor/administrator is appointed, the fiduciary will administrate the estate. Administration will require the executor/administrator to marshal assets and deal with any creditors and/or estate expenses. Once the estate is in a position to be distributed to the beneficiaries, the executor/administrator will need to prepare and file a final accounting and seek a court order distributing the assets. During the administration, contentious issues may arise which may further complicate the administration. However, these issues are outside the scope of this article.

Seeking the recognition of a German will and the probating of a German individual’s estate may seem daunting. However, the executor/administrator is entitled to an attorney whose fees are predominantly paid by the estate. Pragmatically, the attorney will draft and file all requisite court documents, assist with marshaling assets and attend relevant hearings thereby relieving some of the stress involved with probating the estate.

Conclusion

A German will that complies with the laws of California and/or Germany should be entered into probate in California. A German named as executor in a German will may serve as executor in California and the use of a California attorney may assist with the day to day administration of the estate.

The California Probate Code provides for reasonably simple means of obtaining recognition of a German will. However, as discussed above, conflict of laws analysis and/or the failure to apply conflict of laws rules can result in unattended consequences. Accordingly, German individuals with California situs assets should consider a comprehensive estate plan that provides for greater certainty. 

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