Recognition of a German Will in California as regards to Form

Recognition of a German Will in California as regards to Form

As witnessed Wills are uncommon in Germany, it often happens in German-Californian estate matters that the question arises if a German Will can be admitted to probate in California. This article provides an introduction to the recognition of German wills as regards to form in California.

 

Wills under German Law 

Under the German Civil Code (“BGB”), the testator can choose between two forms of regular Wills:

  1. the holographic Will (eigenhändiges Testament) or
  2. the notarial Will (notarielles Testament), also referred to as public Will. See §2231 BGB

Holographic will

A testator may make a valid will wholly by his or her own handwriting and signature. See § 2247 (1) BGB. Attestation and/or orwitness signatures are unnecessary. However, a will written on a typewriter or computer is not deemed to be handwritten even if it is signed by the testator.

A valid holographic will requires that the will be handwritten and that the signature of the testator be made personally by the testator and that such signature follows the end of the text. See § 2247 (1) BGB. A signature on an envelope containing a testament may be sufficient if the letter is sealed.

The testator should state the time and place where he/she made the will. However, if the testator fails to do so, the testament is still valid, if the time and place can be determined otherwise. See § 2247 (5) BGB. 

The signature should contain the first name and the surname of the testator. See § 2247 (3) BGB. However, failure to include such information may not necessarily be fatal if the identity of the testator can be clearly determined and that the testator intended to make a will. See § 2247 (2) BGB.

Notarial Will

If the Testator wants to make a notarial will, he/she must declare orally to the notary that the will document contains his intentions. See § 2232 BGB.

In most cases, the will is discussed with the notary prior to the execution appointment as the notary will typically draft the will. The writing does not need to be written by the testator in the case of a notarial will. It is sufficient that the notary's recording is approved and signed. See § 131 BeurkG.

Formalities under California Law and Recognition of German Wills 

In California, the regulations regarding the valid execution and witnessing of a Will are articulated in the California Probate Code (CPC).

Special Rules for the Recognition of Foreign Wills

California has no special rules for the recognition of Foreign Wills. In particular, it has not signed the Hague Convention on the Form of Testamentary Dispositions. CPC § 6380-6390 provide for “International wills”, however, the formalities of an “international will” are more onerous than the general requirements for a valid California will and are rarely met in German-American estate matters. 

Holographic Wills

CPC § 6111 sets out the law for holographic wills.  A holographic will is valid if the signature and the important sections of the will are in the handwriting of the testator. Authentification by two witnesses is not required. Therefore, a German holographic Will is to be considered formally valid in the State of California.

German Notarial Wills

California requires that a typed will must be signed by the testator and witnessed by two adults who understand that the instrument they are signing is the testator’s will. A German notarial will not authenticated by two witnesses is therefore to be considered formally invalid in the state of California.

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