Formal Requirements to set up a valid Will in England, Scotland and Germany: What are the Differences?

International families, expats or elderly people who have moved to another country after retirement often have the choice as to under which country’s legal regime they wish to set up their Last Will & Testament (see here for mutual acknowledgement of Foreign Wills). In this article we compare the formal requirements of German, English and Scottish law (the latter being surprisingly different from English law, in spite of England and Scotland both being in the United Kingdom).

gp_anz_mav_very_british_en_KOMPLETTE_LINKLISTEIn Germany, a testator has two options to make a valid will: Either write the entire will in his or her own hand (so called holographic will) or make an appointment with a German notary (or German consular officer if the testator lives abroad) and have the will notarised. The latter alternative has one practical advantage: The heirs won’t have to obtain a German grant of probate (Erbschein or Testamentsvollstreckerzeugenis) later, because a German notarial will is accepted without such grant, i.e. in lieu of an Erbschein. This saves the German inheritors (beneficiaries) money and time. The German Supreme Court (Bundesgerichtshof) has even decided in a recent ruling of 5th April 2016 (BGH 5.4.2016, XI ZR 440/15), that the German heirs do not even need to obtain a German grant of probate if a holographic will is very clear and simple (see for example here). Up until then (and probably also for quite some time in the future, in spite of this recent ruling), German banks and insurance companies have always insisted on the heirs to produce a German grant to prove that they are entitled to the funds. More on German Wills and German Probate Procedure here ……

England, Wales and Scotland use a very different approach to setting up a valid will. However, surprisingly, at least to a non British person, English and Scots Wills are quite different. Despite both being in the United Kingdom, Scotland and England retain their distinct differences in legal traditions. In fact, two entirely different legal systems exist in this small island, because Scots Law derives largely from principles akin to the Roman tradition and remains distinct from the English Common Law approach with heavier emphasis on precedent and equity. Thus, the law relating to wills, succession and probate proceedings is very different in England & Wales on the one hand and Scotland on the other hand side.

Formalities of Execution of the Will Document

As in the famous quote from “Pulp Fiction” it is the little differences: In Scotland, the will must be signed by the testator / testatrix on every single page and the last page must be signed before (at least) one witness.

In England, a signature by the testator is not required on every single page. However, the testator’s signature at the end of the will must be witnessed by two persons. If the “testing clause” in a Scots will does not give the date of execution, the will is invalid, whereas the absence of a date of signing on an English will is not that critical, because other evidence for the date of signing can be presented to the probate office. Surprisingly, in Scotland 12 year olds can make a valid will and a 16 year old can act as executor, while in England a valid will cannot be made until age eighteen is reached.

Thus, there is no such thing as a British  or UK Will!

For more information on German-British probate matters and international will preparation see the below posts by the international succession laws experts of Graf & Partners LLP

Or simply click on the “German Probate” section in the right column of this blog.

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Solicitor_SchmeilzlThe law firm Graf & Partners and its German-English litigation department GP Chambers was established in 2003 and has many years of experience with British-German and US-German probate matters, including the representation of clients in contentious probate matters. If you wish us to advise or represent you in a German or cross border inheritance case please contact German solicitor Bernhard Schmeilzl, LL.M. (Leicester) at +49 941 463 7070.

Company Finance and Accounting in Germany

euro_billsSmaller businesses, under German tax and accounting laws, must deliver to the same professional standards as larger companies, but they are often not in a financial position to pay for an experienced in-house team of accountants, controllers and financial planners. For such companies in Germany we offer the expertise and services of a full team of English speaking experts, but on a „pay only for what you need“ basis.

We provide German subsidiaries or branch offices of British and American enterprises with experienced services in the areas of financial bookkeeping, payroll, cost accounting, forecasting and strategic planning. We also help you observe all German legal requirements. Of which there are plenty.

If you are establishing a new business in Germany or expanding by opening a branch, we can help you set up the necessary systems from scratch. You will look forward to your monthly finance review – because the numbers will be clear and understandable. We also do assist with writing applications for German and EU grants and will provide you with all the necessary charts and tables for professional negotiations with investors and buyers.

FG_LogoDon’t hesitate to call us on +49 (0) 941 463 707 80. Here you find more information on Friendly Germans, the British German Consulting Company.

Buying a German Company

If you consider buying or merging with a German company or stock corporation (see checklist here), we can either structure and manage the entire acquisition process for you or merely assist with specific tasks like due diligence (e.g. financial, legal, business, IT) or contract negotiation. Our team of lawyers, financial and business experts has extensive experience with international M&A projects in various industry sectors. We will always keep matters as simple and straight forward as possible.

If the potential buyer does not want to be identified, we can provide trustworthy professionals that act as trustees and acquire the company shares on the buyer‘s behalf. Fully compliant, of course, with all laws and regulations of Germany and the European Union. For non-legal work, we do recommend the service provider Friendly Germans Ltd. The British-German Consultancy Firm.

More on German company law is available in these posts:

Establish a German Limited Company (GmbH): FAQ and Checklist
What is a GmbH? The German Limited Liability Company explained
Checklist: Formation of a German Company. And then what?
Buying a German Company: A quick Checklist
How to read a German Company Register Extract
Company Forms in Germany: An Overview
Brexit as a Business Opportunity for British SME’s

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The law firm Graf & Partners and its German-English litigation department GP Chambers was established in 2003 and has many years of experience with British-German and US-German business and corporate matters, including the representation of clients in M&A transactions. If you wish us to advise or represent you please call German business lawyer Bernhard Schmeilzl, LL.M. (Leicester) or Munich based English solicitor Elissa Jelowicki on +49 941 463 7070. For non-legal work, we do recommend the service provider Friendly Germans Ltd. The British-German Consultancy Firm.

English Desk at German Law Firm Graf Partners LLP

Solicitor_SchmeilzlThe Munich and Regensburg based German law firm Graf & Partners LLP, established in 2003, specialises in providing professional legal services to English speaking clients, both business and private. Our British-German specialist teams of lawyers and linguists advise on all legal and tax issues connected to Germany and European Union law, from business, corporate and labour to international probate, family law and property.

Solicitor_EJ_MunichThe English Desk in our Munich office is headed by dual qualified English solicitor and registered European lawyer Elissa Jelowicki. The English Desk at the Regensburg office is headed by the firm’s managing partner Bernhard Schmeilzl, LL.M.

Our English partner firm Lyndales Solicitors LLP, located in central London, operates a German Desk with expertise in German-British legal matters from an English law perspective. Together, the British-German lawyers do assist UK, US and other international clients in both the United Kingdom and in Germany.

And should you need to go to court in Germany, the litigation department GP Chambers provides forensic services in German civil and business lawsuits or arbitration proceedings throughout the country. Our senior lawyers are also frequently called upon to act as arbitrators due to their expertise in both English and German law as well as their languagy skills.

If you need assistance with German law or tax issues, why not contact German lawyer Bernhard Schmeilzl, LL.M. (Leicester) or Munich based English solicitor Elissa Jelowicki on +49 941 463 7070.

Is an English Last Will & Testament valid in Germany?

In most cases, the answer is simply: yes! Any Last Will which is set up in accordance with the formal requirements of English or Scottish law is, in principle, recognised as a valid Will by German Probate Courts.

Within the European Union, this is nowadays exlicitly stated in Article 27 of the EU Succession Regulation, which, however, the UK has opted out of (even before Brexit): Continue reading

The Infamous “Community of Heirs” in German Inheritance Law – And How to Avoid it

German Succession Law does not know the concept of a “Personal Representative”. Instead, German inheritance law applies the principle of direct accession (more on this here). That is all very nice and efficient if there is only a sole heir. Or if, in case there are several heirs, they are reasonable and on good speaking terms. If, however, which is not uncommon, the co-heirs do not like each other or if they disagree on who should get what, then the German concept of the Erbengemeinschaft, “Community of Heirs” (section 2032 German Civil Code), creates a mess for everyone involved.

Why so?

Because all co-heirs (Miterben) must act jointly and are forced to agree about everything by unanimous vote. In other words: The German Grant of Probate (Certificate of Inheritance) lists all co-heirs by name. Consequently, this means that every document required for the administration (or rather dissolution) of the German estate, i.e. each letter of instruction to a bank or insurance company, each letter to the German Land Registry or an estate agent etc, must be signed by each and every co-heir. Continue reading

Crash Course on Duties and Liability of a German Company Director (vs the Director of a UK Limited)

German-British Corporate Lawyers of Graf & Partners (Munich) coach newly appointed directors, CEOs and managers of German and English companies and corporations

Solicitor_SchmeilzlGerman Corporation Law and Limited Liability companies hold a number of surprising differences compared to UK or US company law. Have you, for example, ever heard of the German principle of “Kapitalerhaltungsgrundsatz” (i.e. the manager’s duty to maintain the minimum share capital)? Well, if you intend to act as the director of a German GmbH you should have, because if you violate this statutory obligation you might not go to jail, but you will face both civil claims and criminal charges nontheless and – if you are found in breach of these German company law principles – you will be barred from acting as a company director for at least five years. The same principle is true if you do not immediately file for insolvency if and when your German company either has negative equity or is insolvent. And, by the way, the company is already considered to be insolvent if  invoices are not being paid within 10 days.

Solicitor_EJ_MunichOur intense, one day management seminar makes you aware of all the obligations of a German company director and teaches you how to comply with civil, company and tax laws within Germany.

The speakers are German company lawyer Bernhard Schmeilzl, LL.M. (called 2001) and British-Canadian solicitor Elissa Jelowicki.

More on German company law is available in these posts:

Establish a German Limited Company (GmbH): FAQ and Checklist
What is a GmbH? The German Limited Liability Company explained
Checklist: Formation of a German Company. And then what?
Buying a German Company: A quick Checklist
Company Forms in Germany: An Overview
Brexit as a Business Opportunity for British SME’s

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The law firm Graf & Partners and its German-English litigation department GP Chambers was established in 2003 and has many years of experience with British-German and US-German business and corporate matters, including the representation of clients in M&A transactions. If you wish us to advise or represent you please call German business lawyer Bernhard Schmeilzl, LL.M. (Leicester) or Munich based English solicitor Elissa Jelowicki on +49 941 463 7070.

No Win No Fee Agreements are Void in Germany

No win no fee agreements (contingency fees) between a client and lawyer are prohibited under German law. This has always been the tradition of German law (more here). The reasoning behind this rule is that German lawyers shall not undercut each other, because this would lead to poorly financed law offices providing very poor services to their clients. Also, German lawyers shall not be under the influence of undue incentives, i.e. trying to win a case no matter what including tampering with evidence, influencing witnesses etc. Continue reading

You keep your Eyes on the Ball…

… while we’ll keep ours on the law for you

The German-British Sport Law Experts of Graf & Partners specialise in drafting and negotiating athletics agreements, sponsoring and endorsement deals, sports related litigation and sports event agreements. We consult sports federations, professional sports clubs, major event sponsors and individual professional athletes from many different sports, including football (soccer), ice hockey, golf, baseball, motor sports and winter sports. Since, nowadays, sports law is essentially business law, our sports lawyer team includes experienced corporate, contract and intellectual property lawyers qualified in Germany and England. Head of the sports law department is Bernhard Schmeilzl, who is an international business lawyer called to the bar in 2001 and who has 30 years of experience as a sports manager, arbitrator and coach. He is currently advising English football teams on how to secure unrestricted access to EU football players in spite of the recent Brexit decision.

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The law firm Graf & Partners and its German-English litigation department GP Chambers was established in 2003 and has many years of experience with British-German and US-German business and corporate matters, including the representation of professional sports organisations and professional athletes. If you need legal advice or representation do not hesitate to contact our German-British law firm by calling +49 941 463 7070

International Probate: Assets in Germany will be found (and taxed) by German Tax Office

Nowhere to hide from the German Finanzamt

If the deceased held funds or owned property in Germany, the German Tax Office (Finanzamt) will find out about it and will – most likely – levy German inheritance tax, even if the deceased was not a German national and even if the deceased was not resident in Germany. We have explained the workings of the German Inheritance and Gift Tax Code (Erbschafts- und Schenkungssteuergesetz) here.

Executors are under the legal obligation to submit an inheritance tax declaration (Erbschaftssteuererklärung). The German IHT forms are available for download here.

But would the German tax office (Finanzamt) ever find out about the assets of the testator if the executor would – let’s say – forget to submit such a German IHT declaration? Yes, the tax authorities definitely will find out about such assets of the deceased. For numerous reasons: Continue reading