Wills in Germany

Wills in Germany

A Will represents the most fundamental and widely used instrument in estate planning. The simple will is also essential to ensure that an individual’s final wishes are carried out efficiently with minimum expense and delay. This article outlines the basic principles of German law relating to wills and includes links to additional information.

Restrictions on the Testamentary Freedom 

Generally, a testator is free to determine the distribution of his/her property upon death by means of a testamentary disposition. In other words, the testator is free to appoint heirs and to assign shares in his/her estate as he/she sees fit. 

The German forced share is only a claim in money against the heir and failure to provide for the forced heir generally does not invalidate the Will. A testator is also free to modify or revoke a testament prior to death unless he has entered into a succession contract or is bound by mutual will. 

Capacity to make a will under German law

Every person who has reached the age of sixteen can generally make a will. See § 2229 (1) of the German Civil Code (BGB). A person incapable of understanding the testamentary disposition process due to mental incapacity including unsound mind, temporal derangement, and/or dementia cannot make a valid will. § 2229 (3) BGB. Whoever claims that the testator lacked testamentary capacity carries the burden of proof.

Form of a will under German Law 

The testator can choose between two forms of regular wills (§ 2231 BGB): the public will (§ 2232 BGB), and the holographic will (§ 2247 BGB).

Holographic will

A testator may make a valid will wholly by his or her own handwriting and signature. § 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 sec. 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).Codicils and amendments to a testament must always be signed separately. 

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, § 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, § 131 BeurkG.

Estate planning consideration: The heir can be registered as new owner of real estate in a German land registry, if the owner of such real estate made a Public Will, which names that person as heir and the public will is "opened" by the German probate court (opening of the Will) No German certificate of inheritance is required. Accordingly, it is often advisable to make a Public Will if the testator owns real estate in Germany.

Irregular wills

In emergency situations, particularly where the testator is close to death, the testator may make a will under special requirements. For example, wills can be made in certain situations in the presence of the mayor (see § 2249 BGB) or in the presence of three attesting witnesses (see §§ 2250, 2251 BGB).

Foreign wills

Germany has ratfied the Hague Convention on the Form of Testamentary Dispositions. As a consequence, a foreign will is valid in Germany with respect to form if its form complies with the internal law:

  1. of a nationality possessed by the deceased, either at the time when he made the disposition, or at the time of his death, or
  2. of the place where the deceased made it, or
  3. . 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
  4. so far as immovables are concerned, of the place where they are situated or
  5. of the applicable law with respect to the succession or the law that would have been applicable at the time of the testamentary disposition.

Content of the will

Generally, the testator is free to make a will. However, such a will must comply with German law. The testator may:

Please note: Trusts are virtually unknown in German Civil law. Accordingly, it is not possible to transfer assets located in Germany to a trust upon death.  However, such a transfer does not necessarily have to be without effect. The trust may be interpreted as a German legal instrument which has similar effects, e.g. a foundation, durable execution of the estate or subsequent heirship. 

Revocation of a will

The testator may at any time revoke or modify a will or part of a will. (See § 2253 BGB). A will or part of a will is revoked only by the following:

  • Another will (§§2254, 2258 BGB);
  • Awriting declaring an intention to revoke a prior will which is made in accordance with the provisions governing the creation of a will;
  • Destruction (e.g. burning, tearing) of the will by the testator (See § 2255 BGB); or
  • By withdrawal of the testament from court custody (See § 2256 BGB).

If revocation is made by testament, the revocation itself may be revoked (e.g., by destruction). In this case the original testament is effective (see § 2257 BGB).

Please note: The right to revoke a testament may be limited by way of a contract of inheritance / contract of succession or a mutual will.

The Joint Will in Germany

Pursuant to §§ 2265-2273 BGB, spouses can make a joint will (gemeinschaftliches Testament). A joint holographic will may be handwritten by only one spouse. However, both spouses have to sign the will in accordance with § 2247 BGB. A joint public will may be made in accordance with §§ 2231 sec. 1, 2232 BGB.

Mutual Will (Gegenseitiges Testament)

A testamentary disposition in a joint will is mutually connected to another testamentary disposition if it would not have been made without that disposition. (See § 2270 sec. 1 BGB). According to § 2270 sec. 2 BGB, unless otherwise provided, it is presumed that a testamentary disposition is mutually connected to another testamentary disposition if the estate shall pass to the surviving spouse and after the death of the surviving spouse to a relative or otherwise related person (e.g. friend) of the first deceased spouse. According to § 2270 sec. 3 BGB, § 2270 sec. 1 BGB does not apply to dispositions other than those concerning the appointment of heirs, testamentary bequests or testamentary burdens. Any other testamentary disposition, e.g. administration of the estate, is not mutual.

If a mutual testamentary disposition is revoked or invalidated, the corresponding testamentary disposition is invalid as well. (See § 2270 I BGB). During the lifetime of the other spouse, each spouse may revoke his own disposition by informing the other testator by way of notarial letter.  After the death of one spouse, mutual testamentary dispositions of the other spouse cannot, in principle, be revoked and is binding. However, if the surviving spouse renounces the inheritance (Disclaimer of inheritance (Ausschlagung)), he/she is free to change his will. (See § 2271 II l BGB).

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