Recognition of a German Will in the USA (formal validity)

Recognition of a German Will in the USA (formal validity)

This article provides an introduction to the recognition of German wills as regards to form in the USA.

 

Under the German Civil Code (“BGB”), the testator can choose between two forms of traditional wills (§2231 BGB):

  1. The public or notarized will (§2232 BGB), and
  2. the holographic or handwritten will (§2247 BGB).

Witnesses are not required for the validity of a holographic or notarized will. Unlike the U.S., witnessed wills are uncommon in Germany.  

Recognition of German wills in the USA

The Uniform Probate Code (“UPC”) addresses the question of the recognition of “foreign wills” in article 2-506 (“Choice of Law as to Execution”). Pursuant to article 2-506 UPC a written will is valid if executed in compliance with Section 2‑502 (“Witnessed Wills; Holographic Wills”) or 2‑503 (“harmless error”) or if its execution complies with the law at the time of execution of the place where the will is executed, or of the law of the place where at the time of execution or at the time of death the testator is domiciled, has a place of abode, or is a national. 

Only sixteen states adopted the U.P.C. in its entirety including Arizona, Colorado, Hawaii, and Florida. The remaining states adopted sections of the U.P.C. in a piecemeal manner. Even among the adopting states, there are significant variations between the application and interpretation of the various sections. Many of the variations can be significant even between the states which adopted the U.P.C. Unfortunately, the U.P.C. has suffered a fate similar to other attempts to standardize U.S. state law. The U.P.C. is generally characterized as being unsuccessful in its attempt to standardize U.S. state probate law. 

State of New York

The state of New York does not recognize a hand-written (holographic) as being valid unless it satisfies the requirements of valid will under the applicable rules of recognition of foreign wills.  According to Article 3-5.1 (c) and (d) of the “Estates, Powers and Trusts Law” (“EPTL”) a will is formally valid and admissible  to  probate  in New York,  if  it  is  in  writing and signed by the  testator, and otherwise executed and attested  in  accordance  with  the  local law of the state of New York, the jurisdiction in which the will was executed, at the time of execution or the jurisdiction in which the testator was domiciled, either at  the time of execution or of death.

Recognition of a German hand-written will (holographic will): A German hand-written will not authenticated by two witnesses is therefore to be considered formally valid in the state of New York.

Recognition of a German notarial will (notarized will):  A German notarized will not authenticated by two witnesses is therefore to be considered formally valid in the state of New York.

State of Florida

According to 732.502 (2), Fla.Stat., a will must be in writing, signed by the testator and authenticated by two witnesses. A holographic will is without force or effect under Florida law. However, if the decedent died domiciled in Germany, it may be valid under the applicable terms of the German civil code. Additionally, from the perspective of a German court it may be valid (see decision of the German supreme court, BGH IV ZR 135/03) and, thus, it may be advisable to sue in a Germany. 

Recognition of a German hand-written will (holographic will): A German hand-written will not authenticated by two witnesses is to be considered formally invalid in the state of Florida (Schuler v. Salathe, 703 So.2d 1167 (1997)) as far as Florida law applies. 

Recognition of a German notarial will (notarized will):  A German notarized will not authenticated by two witnesses is therefore to be considered formally valid in the state of Florida as far as Florida law applies. 

State of California

In California, the regulations regarding the valid execution and witnessing of a Will are articulated in the California Probate Code; Division 6 Wills and Intestate Succession; Part 1 Wills; Chapter 1 General Provisions Section 6100; Chapter 2 Execution of Wills, Sections 6110 & 6112; and, Division 7 Administration of Estates of Decedents; Part 2 Opening Estate Administration; Chapter 3 Probate of Will; Article 2 Proof of Will, Section 8220.

Similar to New York and Florida, California requires that the testator be at least 18 years of age, of sound mind, and that the will be made in writing. 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 holographic will is valid if the signature and the important sections of the will are in the handwriting of the testator. Sections 6380-6390 of the California Probate Code also recognize “International wills”, however, the requirements for recognition as an “international will” are more onerous than the general requirements for a valid California will. 

Recognition of a German hand-written will (holographic will): A German hand-written will not authenticated by two witnesses is therefore to be considered formally valid in the state of California.

Recognition of a German notarial will (notarized will):  A German notarized will not authenticated by two witnesses is therefore to be considered formally invalid in the state of California.

Recommendations

Clients with property in several international jurisdictions apart from domicile should create situs wills that avoid many of the inadequacies of transferring situs property by a domiciliary will standing alone. Nevertheless, many decedents will die leaving simply a domiciliary will which will require a California attorney to either seek ancillary administration or to seek reclassification of situs property under conflict of laws principals. 

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