Recognition of an American Will in Germany

As lawyers specializing in German-American probate matters, we are often asked by clients whether an American Will which also makes provisions regarding German assets is valid in Germany. This article examines whether an American Will can be recognized in Germany.

Recognition of American Wills as Regards to Form

Requirements of a valid 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 (Testament) 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, 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 an Foreign Will in Germany as Regard to Form

As most wills in the U.S. are typed and include two witnesses, American Wills often do not comply with the formalities of either § 2247 BGB or § 2233 BGB.

However, as Germany has ratified the Hague Convention on the Form of Testamentary Dispositions, an American Will 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.

Please note:  German courts  characterize many trusts as Wills. Consequently, a trust that complies with with the formal requirements of a Will is also recognized as valid as regards to form. However, as trusts as such are virtually unknown in German Civil law and the German probate court (Nachlassgericht) will have to determine a German equivalent, it is not advisable to make a trust with regard to assets in Germany.

Substantive Validity of an American 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 (Europäische Erbrechtsverordnung), 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 interpret the Will and, in some cases, it may not be recognized as being fully effective and may only result in partial recognition. 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. Pragmatically, heirs or executors will need to obtain a German certificate of inheritance or executorship (or both) to access and marshal assets in Germany. For information how to obtain a German certificate of inheritance, please check our article German Certificate of Inheritance

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