Introduction
The purpose of official safekeeping (deposit of a will) is to ensure that a testamentary disposition (will, inheritance contract) is found in the event of inheritance and is not, for example, lost or destroyed (without the intention to revoke it).
Official Custody of Notarized and Private-Handwritten Wills
A notarized will is immediately placed in special official custody by the notary who authenticated it. See § 34(1) BeurkG. Only a note remains in the notary’s collection of documents.
A holographic will must be placed in official custody upon request. See § 2248 BGB.
Representation by an attorney-in-fact is permitted (OLG Munich, Order of June 25, 2012, 31 Wx 213/12).
The filing may be made in person at the custodial court or by mail (KG OLGE 1, 294; KGJ 20 (1900), A 259, 260). The law does not prescribe any specific form for the application. However, many custodial courts have developed their own forms, the use of which is recommended. A birth certificate should be attached, as the court of deposit is required to have the will entered into the Central Register of Wills at the Federal Chamber of Notaries, and the information from the birth certificate is needed for registration. If a birth certificate cannot be attached, a copy of the passport or national ID card should be included.
By analogy with § 2248 BGB, emergency wills may also be placed in official custody. This is justified on the grounds of an “urgent need.” Following this line of reasoning, Wills drawn up under the formalities of common-law countries may also be placed in official custody.
Any probate court has jurisdiction over the special official custody of holographic wills. Notarized wills and inheritance contracts are deposited with the probate court in whose district the notary has his or her official seat. Upon request, deposit may be made with another probate court. See 344 FamFG.
You will be issued a deposit certificate confirming the deposit. If you deposit a joint will, each person will receive a deposit certificate.
The probate court confirms the acceptance of the testamentary disposition into special official custody by means of a so-called acceptance order. An entry is then made in the local court’s deposit register, and the will is locked in the will cabinet. The testator is issued a deposit certificate. See § 346(3) FamFG.
A one-time flat fee of EUR 75.00 is charged for the deposit of each will. See GNotkG, Annex 1 (to § 3(2)), Schedule of Fees No. 12100.
Registration of the Deposited Will with the Central Register of Wills
Immediately after the will is deposited, the custodial court electronically transmits the information specified in § 78d(2) BNotO to the Central Register of Wills.
Return of the Deposited Will from Official Custody
The testator may request the return of the will at any time. See § 2256(2) BGB. The will may only be returned to the testator in person. See § 2256(2) BGB. In the case of a joint will, the testators may only jointly request the return of the will from official custody. After the death of one spouse, withdrawal is no longer permitted. The deposit certificate should be presented along with the request for return.
Upon return of a notarized will or a will drawn up pursuant to § 2249 BGB, the will is deemed revoked if the document taken into official custody is returned to the testator. See § 2256 (1) BGB. The return does not affect the validity of a holographic will. See § 2256(3) BGB.
Notification of Death and Opening of a Will
In the event of a death in Germany, the civil registry offices issue death certificates and electronically notify the Central Register of Wills of the death in accordance with § 78e BNotO (notification of death). The German Central Register of Wills is only notified of deaths occurring abroad if the death is subsequently registered in Germany upon request or if the Central Register of Wills manually enters the foreign death record.
If the Central Register of Wills finds a registration, it informs the custodial court of the obligation to deliver the will to the competent probate court. The probate court opens all wills in its custody (if necessary, after delivery). For more information on this, see the article “Opening of a Will—Procedure, Duration, Costs.”
If the will has been in official custody for more than 30 years, the custodial authority must, ex officio, determine whether the testator is still alive. If the custodial authority cannot determine that the testator is still alive, the testamentary disposition must be opened. See § 351 FamFG.
