What does “opening of a will” mean?
The “opening of a will” (German: Testamentseröffnung) or “opening of a disposition of property upon death” (see § 348 FamFG) refers to the court proceeding in which the contents of any document that, based on its external form or content, may constitute a Will or inheritance contract, are brought to the attention of the parties involved (see § 348(3) FamFG). This allows them to assess their rights.
Does the probate court confirm the validity of the will during the opening of the will?
No. The German probate court (Nachlassgericht) does not review the validity of the disposition of property upon death, nor does it confirm its validity.
What happens if I do not deliver the will to the German Probate Court?
A violation of the duty to deliver may give rise to claims for damages. Under certain circumstances, it may also constitute the criminal offense of withholding a document. This can even lead to disinheritance. The court may also order the delivery and enforce it through coercive measures.
What if the original Will is in official court custody?
If the original will is in official custody (Amtlicher Verwahrung), the court holding the Will is notified of the testator’s death by the registry office of birth, and the will is then opened ex officio. See § 347 FamFG. If the will has been in official custody for more than 30 years, the custodial authority must investigate ex officio whether the testator is still alive. If the custodial authority cannot determine that the testator is still alive, the will must be opened. See § 351 FamFG.
Can a Will that has already been opened abroad be opened again in Germany?
If there is a need for probate in Germany (e.g., because there are funds held at a bank and the bank is required to pay them out upon presentation of a probated will), a will that has already been probated abroad may be probated again. However, the “probate” conducted abroad often does not correspond to German probate proceedings at all.
Which court has jurisdiction over the opening of a Will in Germany?
Local jurisdiction is determined by § 343 FamFG and § 344 FamFG.
If the original will is submitted in compliance with the obligation to deliver it under § 2259 BGB, this establishes special jurisdiction under § 344(6) FamFG.
International jurisdiction is derived from local jurisdiction pursuant to § 105 FamFG. The provisions of the EU Succession Regulation regarding international jurisdiction do not apply, as the opening of a will is not a “decision” within the meaning of the EU Succession Regulation (OLG Frankfurt a. M., Order of May 26, 2020 – 21 SV 2/20).
Is the validity of the Will examined before the opening of the Will?
The probate court does not examine whether the will is valid during probate.
When does the opening of the Will take place?
The probate court opens all wills held in official custody (see § 2248 BGB, § 34(1), sentence 4 BeurkG) as soon as it becomes aware of the death (§ 348 FamFG). Furthermore, it immediately opens all wills that have been deposited in accordance with § 2259 BGB.
Does the German probate court summon the heirs to the opening of the Will?
The German probate court may set a date for the opening of the will and summon the statutory heirs as well as other interested parties (e.g., heirs, legatees) to attend the hearing. See § 348(1) FamFG. In practice, however, such a summons is almost never issued.
Are the heirs present at the opening of the will, and does the court then read the will aloud?
The court may set a date for the opening of the will and summon the statutory heirs as well as other interested parties to the hearing and announce the contents orally. See § 348(2) FamFG. However, it may also notify the parties in writing of the will’s contents pursuant to § 348(3) FamFG, i.e., it sends you a copy of the will bearing the opening notation (stamp) and the opening minutes. The latter is the standard procedure.
Who, as a party to the proceedings, receives a copy of the will?
As parties to the proceedings, all persons mentioned in the will or wills generally receive a copy of the opened will. In addition, those statutory heirs who have been excluded from the succession by a will are also parties to the proceedings.
Is a will held in official custody automatically opened at some point?
If a will, a joint will, or an inheritance contract has been held in official custody for more than 30 years, the custodial authority must investigate ex officio whether the testator is still alive.
What are the legal effects of the opening of a Will?
In the case of intestate succession, the period for renunciation of inheritance begins upon the opening of the will. Furthermore, in this case, the beneficiary generally becomes aware of the inheritance at this point, so that the beneficiary must report the inheritance to the inheritance tax office (Erbschaftsteuerfinanzamt).
Can I still contest a Will that has been opened?
The validity of the will is neither examined nor confirmed during the probate proceedings. Therefore, the probate proceedings do not prevent the will from being contested. On the contrary, often, those entitled to contest the will only become aware of its existence during the probate proceedings and thus only then have the opportunity to exercise their rights.
Why do I need a Will opening record?
With the opened will and the executor’s record, the heir can prove their status as a beneficiary to many institutions, such as banks. Furthermore, the opening of the will is a prerequisite for the issuance of a certificate of inheritance.
What court fees are incurred for the opening of a Will?
A fixed fee of EUR 100.00 is charged for the opening of a will.
How long does the opening of a will take?
The court must notify the parties of the wills without delay. As a rule, the opening of a will therefore takes place within a few weeks of the death. However, if a party involved lives abroad or a will has not been submitted, the process may take much longer.
Glossary: Opening of the Will (Testamentseröffnung)
