Wills under German Law
Under the German Civil Code (“BGB”), the testator can choose between two forms of regular Wills:
- the holographic Will (eigenhändiges Testament) or
- the notarial Will (notarielles Testament), also referred to as public Will. See §2231 BGB
Holographic will
A testator may make a valid will wholly by his or her own handwriting and signature. See § 2247 (1) BGB. Attestation and/or witness 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 follow the end of the text. See § 2247 (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 if the testator intended to make a will. See § 2247 (2) BGB.
Notarial Will
If the Testator wants to make a notarial will, he/she must declare orally to the notary that the will document contains their intentions. See § 2232 BGB.
In most cases, the will is discussed with the notary before 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. See § 131 BeurkG.
Formalities under California Law and Recognition of German Wills
In California, the regulations regarding the valid execution and witnessing of a Will are articulated in the California Probate Code (CPC).
Special Rules for the Recognition of Foreign Wills in California
Pursuant to CPC § 6113, a written will is validly executed if its execution complies with any of the following:
(a) The will is executed in compliance with Section 6110 or 6111 or Chapter 6 (commencing with Section 6200) (California statutory will) or Chapter 11 (commencing with Section 6380) (Uniform International Wills Act).
(b) The execution of the will complies with the law at the time of execution of the place where the will is executed.
(c) The execution of the will complies with 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.
Validity of a German Holographic Will in California
CPC § 6111 sets out the law for holographic wills. A holographic will is valid if the signature and the important sections of the will are in the handwriting of the testator. Authentication by two witnesses is not required. Therefore, a German holographic Will is to be considered formally valid in the State of California.
Validity of a German Notarial Will in California
As a German, a notarial Will is always executed in Germany, a German Will is recognized as valid in the State of California.
