Recognition of a Will executed under the laws of California in Germany

Recognition of a Will executed under the laws of California in Germany

As lawyers specializing in German-American probate matters, we routinely analyse if a Californian Will can be recognized in Germany. This article examines if a Californian Will can be recognized in Germany.

Recognition as Regards to Form

Formalities of Executing a Will in California

Under CPC § 6110, a Will must be in writing and signed by or on behalf of the testator. If the will is signed by someone other than the testator, it must be signed in the testator’s presence and at the testator’s direction.

The Will may also be signed by a conservator  pursuant to a court order to make a will under CPC § 2580. 

The Will must be witnessed,

  • during the testator's lifetime,
  • by at least two persons each of whom being present at the same time,
  • witnessed either the signing of the will or the testator's acknowledgment of the signature or of the will and
  • understand that the instrument they sign is the testator's will.

Under CPC § 6111(a) a  will that does not comply with CPC § 6110 is valid as a holographic will, whether or not witnessed, if the signature and the material provisions are in the handwriting of the testator.

Validity of a Will as Regard to Form under German Law

Pursuant to § 2231 BGB, the testator can choose between two forms of regular Wills

Pursuant to § 2247 BGB 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.

A notarial Will (notarielles Testament), also referred to as public will (öffentliches Testament), is made by the testator declaring his last will to a German Notary (Notar) or handing the Notary a document with the statement that the document contains his last will. The testator may hand over the document either unsealed or sealed; it is not required to be written by him. See § 2232 BGB.

Recognition of a California Will in Germany as Regard to Form

As most Wills in California are made under CPC § 6111 (a), Californian Wills often do not comply with the formalities under § 2247 BGB or § 2233 BGB

However, as Germany has ratified the Hague Convention on the Form of Testamentary Dispositions, a California law is recognized in Germany as valid as regard to form, if its form complies with the internal law:

  • of a nationality possessed by the deceased, either at the time when he made the disposition, or at the time of his death, or
  • of the place where the deceased made it, or
  • of a place in which the deceased had his domicile or habitual residence either at the time when he made the disposition, or at the time of his death, or
  • so far as immovables are concerned, of the place where they are situated or
  • of the applicable law with respect to the succession or the law that would have been applicable at the time of the testamentary disposition.

Substantive Validity of a Californian Will 

From a German perspective, the substantive validity of a Will (e.g. capacity to make a Will, interpretation) made under the laws of California is governed by the law which, under the European Succession Regulation, would have been applicable to the succession of the person who made the disposition if he had died on the day on which the disposition was made. See Art. 24 of the European Succession Regulation. 

If there is a valid choice of law under Art. 22 of the European Succession Regulation or deemed choice of law under Art. 83 para 4 of the European Succession Regulation, the chosen law governs substantive validity of the Will.

Please note: If the Will was made without contemplation of German law and the applicable law is German law, the German probate court (Nachlassgericht) may have to interprete the Will and, in some cases, it may not be effective in full or partially. This may delay the probate process in Germany. 

Requirement of a German Certificate of Executorship and/or Certificate of Inheritance

There is no specific law that requires that a German certificate of inheritance (Erbschein) or German certificate of executorship (Testamentsvollstreckerzeugnis) be obtained and/or presented to administer an estate in Germany. Pramaticallly, heirs or executors will need to obtain a German certificate of inheritance or executorship (or both) to access and marshall assets in Germany.

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