Introduction
Upon an individual’s death, the estate (Nachlass) passes to the heir (Erbe). See § 1922 German Civil Code (BGB). If there is more than one heir, there is a community of co-heirs (Erbengemeinschaft). See § 2032(2) BGB.
The heir or the community of co-heirs administers the estate and there is generally no other person (e.g. personal representative) involved in the administration of an estate.
However, the testator may appoint by will (Testament) an executor (Testamentsvollstrecker). See § 2179 BGB. The testator may also leave the determination of the person to act as executor to a third party (See 2198 BGB) or the probate court (see 2200 BGB).
Basic Tasks, Powers and Duties of the German Executor
The executor shall execute the testamentary dispositions of the deceased. See § 2203 BGB. Unless otherwise provided by the testator, the executor`s tasks shall include:
Pursuant to these responsibilities, the German executor is entitled to take control of the estate, marshal the assets and dispose of all estate assets. See § 2205 (2) BGB.
His powers specifically include:
- The power to sell or encumber estate assets (including real estate) without any heir`s consent; and
- The power to invest proceeds of any sales.
While the executor’s powers are relatively broad, and executor shall not engage in any of the following:
- Gift any estate assets (See § 2205 BGB); and
- Use the estate to enrich himself.
The heir (Erbe) or the community of co-heirs (Erbengemeinschaft) cannot dispose of estate assets that are under the control of an executor. Further, any acquisition of estate assets without the consent of the executor is void, unless the person acquires the asset in good faith. See § 2211 BGB.
The executor is empowered to enter into contractual relationships and incur liabilities as necessary to ensure the proper administration of the estate. See § 2206 BGB. The executor is exclusively entitled to pursue legal action on behalf the estate. See § 2212 BGB. However, creditors of the estate may direct their claims either against the executor or against the beneficiary. See § 2213 BGB.
The executor is obliged to administer the estate efficiently and effectively in a manner that is consistent with the instructions of the testator. See §2216 BGB.
The executor is responsible for filing the German inheritance tax return (Erbschaftsteuererklärung) for the heirs (and the legatees if the testator has instructed him to do so) and liable for payment of the assessed German inheritance tax (Erbschaftsteuer).
The executor must pay all liabilities of the decedent, funeral costs and administration costs out of the estate and fulfill the legacies. Subsequently, the executor must, upon demand, transfer to the heir for his free disposal any asset of the estate which is clearly not required for the executor to perform his duties. See § 2217 BGB.
Should there be more than one heir, the executor must divide the estate in an equitable manner. Unless there is an agreement amongst the heirs with respect to the division of assets, the assets shall be liquidated and the shares shall be distributed in cash.
An executor may seek “reasonable remuneration” unless otherwise provided by the testator. See § 2221 BGB.
The executor has certain reporting requirements under German law. An executor must provide the beneficiaries with an estate inventory (Nachlassverzeichnis) without undue delay after accepting the appointment; the beneficiaries can also seek to be present when the inventory is made. See § 2215 BGB.
The heir has the right to claim information directly from the executor. Furthermore, the German executor is obliged to provide an accounting (Rechenschaftsbericht) to the beneficiaries when the estate is in a position to be closed. See § 2218 BGB.
In principle the tasks, rights and powers of the executor are subject to modification by the testator. However, the testator may not release the executor from the duties imposed upon him by law and included in §§ 2215, 2216, 2218 and 2219. See § 2220 BGB.
Executors with Limited Duties
The testator may appoint an executor only for particular tasks which include:
- The fulfillment of a legacy (Vermächtnis). See § 2223 BGB; or
- Protection of the rights of a subsequent heir (Nacherbe). See § 2222 BGB.
Extended or Administrative Execution of the Estate
In the most cases, the executor is only called to administer the estate until the estate assets are distributed to the heirs. However, the testator may provide in his Will that:
- The executor administers the estate or part thereof for longer periods; this is generally referred to as extended execution of the estate or as durable execution of the estate (Dauertestamentsvollstreckung); or
- Another executor administers the estate or part thereof once the executor has settled the estate; this is often referred to as administrative execution of the estate (Verwaltungsvollstreckung). See § 2209 BGB.
In such cases he is referred to as durable executor (Dauertestamentsvollstrecker) or administrative executor (Verwaltungstestamentsvollstrecker). The testator may grant such durable executor the exclusive right to administer the estate and dispose of the estate assets. However, he may also limit his powers. For example, the testator could order that the executor shall only supervise the beneficiary and shall not take the estate into possession.
Rationale for naming a durable executor can include:
- The protection of the property of underage children;
- The protection of property of a young or not financially experienced adult;
- The protection against claims of creditors of the heir; and/or
- The exclusion of the parental rights of a parent of a minor.
The durable executor is obliged to account to the heir at the end of the administration and upon his request at the end of each year of the administration.
The durable execution of the will ends after 30 years following the death of the testator. However, the testator may direct that the administration is to continue until the death of the heir or of the executor. A testator could also specify a specific event that could trigger the conclusion of the administration. See § 2210 BGB.
Acceptance of the Office and Issuance of Certificate of Executorship
The office of the executor begins at the time when the appointed person accepts the office (by declaration towards the probate court). See § 2202 BGB. Unless the testator ordered in his Will, that the court shall appoint the executor, there is no requirement of further court involvement.
Upon application, the probate court (Nachlassgericht) will issue a German certificate of executorship (Testamentsvollstreckerzeugnis) to the executor. See § 2368 BGB.
The German certificate of executorship is the German equivalent of a grant of probate/letters testamentary. It states the identity of the German executor (Testamentsvollstrecker) any limitations to his statutory powers.
Administration of the Estate and Distribution
The certificate of executorship will enable the executor to proove his right to administer the estate (Nachlass) and to dispose of estate assets, eg. towards a German land registry (Grundbuch), a German financial institution or the German Commercial Register (Handelsregister). However, in order to register the heir (Erbe) as new owner of in a public register (e.g. land registry or commercial register), he generally will need to obtain a German certificate of inheritance (Erbschein).
Court Supervision of the German Executor
In contrast to probate proceedings in common-law jurisdictions, the executor is not required to report to the probate court (Nachlassgericht) and the probate court has, generally, no right to supervise the administration of the executor or give him instructions.
However, the probate court may dismiss an executor upon petition by an interested person if a compelling reason exists; a compelling reason is, in particular, a gross breach of duty, or his incapacity to effect proper management. See § 2227 BGB.
Liability of the Executor
The executor is liable for any damage resulting out of a breach of his duties (§ 2219 BGB).
