Assistance for British executors or administrators and/or trustees of German estates

When does German inheritance law apply?

For all persons whose date of death is after 16th August 2015, German courts will apply with regard to all questions pertaining to the estate of a person as set out in the European Succession Regulation (Europäische Erbrechtsverordnung), also known as "Brussels IV". The applicable law under the European Succession Regulation is that of the country of the deceased's habitual residence (gewöhnlicher Aufenthalt) at the time of death.

Are there any exceptions from this rule?

If the deceased was manifestly more closely connected with another state or had chosen to apply the law of his or her nationality or if the law of his habitual residence refers back to German law (renvoi). 

Does German inheritance law apply to the estate of a British national?

If the foreigner`s last habitual residence (gewöhnlicher Aufenthalt) was in Germany and he had not chosen the law of his nationality, German law governs succession of his worldwide estate.

What is an "heir" in the meaning of German law?

Under German law, the estate (Nachlass) passes directly to the heir (Erbe) or, if there is more than one heir,  to the community of co-heirs. See § 1922 of the German Civil Code (BGB). The heir (Erbe) is the universal successor of the deceased and “steps into the shoes of the deceased”. Unless there is a German executor (Testmamentsvollstrecker) the heir or the community of co-heirs administers the estate. Other persons like the legatee or the forced heir, only have a personal claim against the heir and have no administration right. 

Does Germany recognize a UK grant of probate?

German financial institutions may recognize a UK grant of probate - however, most don`t. A German land registry will not recognize a UK grant of probate. Instead, a German certificate of inheritance and/or executorship will be required. 

Does Germany recognize a UK will?

Germany has ratified the Hague Convention on the Form of Testamentary Dispositions. Thus, in most cases, there are no issues with respect to the formal validity of a foreign Will. 

Who is entitled to administer the estate in Germany?

Pursuant to § 1922 BGB the estate (Nachlass) passes directly to the heir (Erbe) at the time of death. Consequently, the heir administers the estate himself unless the testator named an executor (Testamentsvollstrecker).

Is a British executor or administrator entitled to administer the estate in Germany?

A British executor is entitled to receive a German certificate of executorship, if it can be established that it was the testator`s intention that he should settle the German estate and he was not simply named as executor because an executor or administrator is required under foreign law. A British administrator does not qualify for a German certificate of executorship. Consequently, he cannot effectively administer the estate unless the heirs - who will in absence of a German executor administer the estate themselves -  provide him with power of attorney. 

How does the probate process in Germany work?

In most cases, the executor or the heir will need to obtain a German certificate of inheritance (Erbschein) or a German Certificate of Executorship (Testamentsvollstreckerzeugnis) or both to access and sell or transfer assets in Germany.

How do I get a copy of the will?

After the death of the testator, anyone in possession of a handwritten /  holographic will (eigenhändiges Testament) is under legal obligation to deliver it immediately to the probate court. A testamentary disposition submitted to the probate court or obtained from court custody of a Will (amtliche Verwahrung) is officially opened by the probate court following the death of the testator. The court will then send a certified copy of the Will to all interested persons (e.g. next of kin or beneficiaries of the will or a prior will) together with an Opening Protocol (Eröffnungsprotokoll). This proceeding is referred to as the opening of the Will (Testamentseröffnung). 

Are trusts recognized in Germany?

German law does not allow for the transfer of assets located in Germany to a trust. However, a disposition in a trust pertainging to German assets does not necessarily have to be without effect. For example, a testamentary trust may be interpreted as a German legal instrument which has similar effects. For example, it may be interpreted as durable execution of the estate (Dauertestamentsvollstreckung), subsequent heirship (Vor- und Nacherbschaft), life estate / usufruct (Nießbrauch) or a combination thereof.