Rechtsanwalt Torben Swane – German Probate Lawyer
Wills, Probate & Estate Litigation
Whenever German Inheritance Law or German Law of Succession has to be applied or considered – either in Germany or abroad – I will be pleased to advise and assist you in English, French and Russian. I am a certified specialist (Fachanwalt für Erbrecht) with extensive experience in international succession matters.
Phone +49 (0) 30 / 23 63 07 01
For foreign citizens living in Germany and planning their will, EU-Regulation No. 650/2012 („EU-Erbrechtsverordnung“) allows all to choose whether the law applicable to their succession should be that of their habitual residence („gewöhnlicher Aufenthalt“) or that of their nationality.
German Inheritance Law will also be applied if a foreign citizen living in Germany is not an EU citizen, or if a EU citizen dies abroad, Article 20: „Any law specified by this Regulation shall be applied whether or not it is the law of a Member State.“
The new rules are supposed to ease cross-border regulations. Successions will be treated coherently, under a single law and by one single authority. However, the initiative does not alter the substantive national rules on successions.
When will German inheritance law be applied today?
According to Sec. 25 EGBGB, which will be applied on all successions before August 17th 2015, German probate and civil courts will apply German inheritance law, if the deceased was a German citizen or if the International Private Law of the foreign state refers to a last habitual residence or domicile of the deceased in Germany. It may also happen that the International Private Law of a foreign state refers to Germany as the state where real estate is partly located („lex rei sitae“).
Example: A US-citizen from the state of Florida dies domiciled in Germany. He owned a flat in Washington and bank accounts in Austria.
Which national law will be applied?
German law refers to Florida law, which refers to the “domicile” of the deceased in Berlin. This leads to the application of German Law for movables (= bank accounts). The succession of the flat (= immovable) will be governed by the rules of th District of Columbia, the federal state Washington belongs to.
As some countries (i.e. Denmark, Italy) apply different rules, each case has to be thoroughly reviewed – especially if international agreements between states have to be considered (i.e. Russia, Iran, Turkey).
German Inheritance Law at a Glance
German inheritance law is a „story of success“. Since its implementation on the 1st of January 1900, only minor changes were introduced.
If no will exists, the beneficiaries will be determined by the rules on intestate succession („gesetzliche Erbfolge“). The rules apply for/to the spouse („Ehegatte“), blood relatives and for adopted children („Adoptivkinder“). Within so-called patchwork-families, the current system of succession can lead to severe fighting within the family. To avoid this, it is highly recommended to draw a will.
Example: A German citizen dies domiciled in Spain. He leaves behind his third wife (32) and two children from his first marriage (30, 32). A will has not been found.
Which national law will be applied?
For existing bank accounts in Spain and Germany, German law and German rules of intestate succession will apply – from a German perspective. If no marriage contract had been signed, the spouse will inherit ½ and the children ¼ each. The estate becomes the joint property („Erbengemeinschaft“) of all heirs, with awful consequences for the administration and settlement of the estate.
Contrary to UK or US law, the person inheriting, whether by rules of intestate succession or under a will, does not depend on a deceased’s personal representative. Instead, the person inheriting automatically „steps into the shoes“ of the deceased and is responsible for all assets and liabilities belonging to the estate. An excecutor („Testamentsvollstrecker“) has to be explicitly appointed by the testator. The „Testamentsvollstrecker“ may restrict the heir’s legal powers for more than 30 years.
According to German law, wills may be binding („Berliner Testament“ or „Erbvertrag“).
Within the limits of the „Pflichtteil“ (minimum or family share), the testator is free to choose a beneficiary.
Close family members (i.e. the children) who have been excluded from the inheritance are entitled to claim half of what they would have been entitled to if the deceased had died intestate. Donations made during the past ten years may have to be considered as well („Pflichtteilsergänzung“).
Contrary to Swiss or French law, the German “Pflichtteilsrecht” is not structured as a substantive compulsory right („Noterbrecht“), which means that those family members do not have the status of a beneficiary and claims may become time-barred within three years.
The funds due to pay by the beneficiaries may be complicated to calculate, espacially with donations in dispute.
Interpretation of Wills
As time goes by, the testator’s exact motivation to draw up a will may become unclear. Therefore, the interpretation of wills can become quite a science. The German BGB provides for a whole set of interpretation rules to ease this problem, with additional interpretation material (i.e. letters) being legally even more important („Vorrang der Auslegung“).
Contrary to many other legal systems, according to German Law of Successions, wills may be binding („Erbvertrag“ or „Gemeinschaftliches Testament“ between spouses), so that, in some cases, the will may not be changed by the testator alone.
Nachlassgericht („Probate Court Proceedings“)
In Germany, the “Nachlassgericht” (Probate Court) will, upon application, determine who the heirs are and issue an inheritance certificate („Erbschein“).
If the interpretation of a will is in dispute, the Court will further investigate the case and, at its discretion, call witnesses, demand private letters etc.
If an inheritance certificate is issued, it does neither establish the status of being an heir, nor does it enter legal force. If it transpires that a certificate of inheritance that has been issued is incorrect, the Probate Court must revoke the certificate (Sec. 2361 BGB) and a new certificate may be applied for.
However, any person may rely on the correctness of the certificate („Schutz des guten Glaubens“) and will be discharged from his debt if he or she makes performance to the holder of the certificate.
The certificate may be limited to objects located in Germany, which may save a lot of money.
Any further questions? +49 (0) 30 / 23 63 07 01
Welserstraße 10-12 (Viktoria-Luise-Platz)
Email: info [at] erbrecht-berlin.eu
Fax: +49 (0) 30 / 23 63 07 02
The information contained in this site is for general guidance only. The application and impact of laws can vary widely based on the specific facts involved. Therefore, I will not be held responsible for any errors or omissions on this website.
Please also note that laws keep changing, and that many legal problems are presented in a simplified way for better understanding. Please talk to me ore any other probate lawyer before making a legal decision.
Torben Swane, Rechtsanwalt