Representing Beneficiaries of an Estate or Trust in Germany

When does German inheritance law apply?

For all persons dying after August 16th, 2015 German courts will apply with regard to all questions pertaining to the estate of a person 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 the European Succession Regulation also govern the applicable tax laws?

No. Other rules apply to the German inheritance tax (Erbschaftsteuer).

Does German inheritance law apply to the estate of a foreigner?

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.

How does German inheritance law work?

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 foreign wills?

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.

What happens if someone dies without a Will in Germany?

If there is no Will, distribution of the estaet is governed by German Intestacy Rules (Regeln der gesetzlichen Erbfolge) and the estate (Nachlass) passes directly to the heir (Erbe) upon the death of the deceased. if there is more than one heir, the estate passes to the community of co-heirs (he/she “steps into the shoes of the deceased”). See § 1922 Unless there is a German executor (Testmamentsvollstrecker) the heir or the community of co-heirs administers the estate.

What rights has the surviving spouse in Germany if there is no Will?

If German intestacy rules are applicable, the surviving spouse is entitled to 25% of the estate if there is any surviving issue (e.g. children, grandchildren) of the deceased. Additionally, he may receive another 25 % depending on the applicable marital property regime.

If there is no suriving issue, however, the deceased is survived by his/her parents or their issue (i.e. sisters/brothers or nieces/nephews of the decedent) or grandparents, the surviving spouse receives 50 %. In all other cases, the spouse receives the total estate. The share of the spouse may receive an additional 25% share of the estate if there was no ante-nuptial contract between the spouses. For further information, please see the article Intestate Succession in Germany. 

What are the rights of the children of the deceased or other next of kin if there is no Will?

If the testator did not make a will, the issue of the deceased inherits in equal shares. Living children of the deceased exclude the grandchildren of the deceased from any inheritance rights. For further information, please see the article Intestate Succession in Germany. 

Can you inherit debt in Germany?

Under German law an heir (Erbe) inherits both assets and debts of the decedent. However, he can avoid personal liability for the debts. 

Who is called 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, he administers the estate himself unless the testator named an executor (Testamentsvollstrecker).

Who administers the estate if there is more than one heir?

If there is more than one heir, the estate becomes the joint property of the community of co-heirs (Erbengemeinschaft) and the heirs jointly administer the estate. In principle, any act of administration requires a unanimous decision of the other beneficiary. However, some exceptions apply. 

How does the probate process in Germany work?

Pramaticallly, heirs or executors will need to obtain a German certificate of inheritance (Erbschein) or a German Certificate of Executorship (Testamentsvollstreckerzeugnis) or both to access and marshall assets in Germany.

How do I get a copy of the will?

After the death of the testator, anyone having a holographic will (eigenhändiges Testament) in his possession is under legal obligation to deliver it immediately to the probate court. A testamentary disposition submitted to the probate court or taken 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 opening of the Will (Testamentseröffnung). 

Wo do I get information on the estate and the administration of the estate?↑

If there is an executor, the heirs have an enforceable right to an estate inventory (Nachlassverzeichnis), an accounting and supporting information/documentation. If there is no excecutor, the heirs administer the estate themselves and there is generally no right to claim information from a co-heir (as each co-heir can receive the information directly from other persons, e.g. banks). 

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.