British Expats Beware of Foreign Succession Laws and Foreign IHT

Children of British Expats in Europe often are entitled to the Estate without even knowing it. EU Succession Laws are full of surprises.

British expats who are resident in Europe, let’s say in Germany, Austria, France or Spain, rarely are aware that ever since the introduction of the EU Succession Regulation (August 2015), if they pass away while being resident in that country, the Inheritance and Succession Laws of that country of residence will most likely apply to their estate. This is due to the fact that the entire European Union (except for the UK, Denmark and the Republic of Ireland) have adopted the EU Succession Regulation which states that the laws of the country in which the deceased had his or her last habitual residence must apply. Habitual residence is easier to achieve than domicile.

Thus, a British national who may consider him- or herself to be domiciled in England, can easily be considered by the German, Austrian, French or Spanish probate court to have established habitual residence outside the UK. Then, from a EU law perspective, these national succession rules (i.e. German, Austrian, French inheritance laws etc.) do apply to the entire estate, including the assets situate within the UK. English law takes a different view on this issue which may lead to horrendous legal disputes and contentious international probate cases which drag on for years and block the administration of the estate both in the UK and in Europe.

Who inherits if a British expat dies abroad?

German Intestacy Rules Overview Chart

The application of foreign succession laws can lead to surprising results. Pleasant or unpleasant, depending on the degree of kinship with the deceased. Under German succession laws, for example, the surviving spouse has a much weaker position compared to the intestacy rules in England and Wales as well as Scotland. Details are explained here and here.

The stunning results are not only caused by different national rules of intestacy. These could easily be avoided by simply creating a will. But even if the British expat has set up a valid will, the inheritance and succession laws of continental EU countries (including Germany, Austria and France) often apply statutory elective share rules, also known as forced heirship or compulsory inheritance share rules. For practical implications of such forced heirship rules see here and here.

By the way: National inheritance tax laws of the respective country of residence do also apply. This cas always been the case and has nothing to do with the EU Succession Regulation and will also not be affected by Brexit. National tax laws are what they are. Still, British expats should inform themselves about the respective IHT laws of their country of residence. Unless they live in Austria because Austria does not levy any inheritance tax (as of now).

In order to avoid unpleasant surprises or probate problems, expats should definitely have their last will checked by an international succession law expert within the country of residence. English solicitors are rarely capable or even willing to consider foreign law implications (for some examples how English wills can lead to catastrophic results outside the UK see here).

If you wish to instruct Graf & Partners LLP to draft a Will or to team up with a foreign lawyer to advise in specific areas of German or Austrian law, please feel free to complete the questionnaire and contact our German succession and probate law experts. Lawyers can create a tailor-made Last Will only if they are fully informed about the testator’s personal situation and his/her objectives. In order to draw up a Last Will that fully meets the clients individual requirements, Graf Partner LLP uses a comprehensive questionnaire and Will preparation checklist (available for download here).  This checklist also helps to facilitate an effective and individual preparation for the personal meeting at the firm.

German solicitor Bernhard Schmeilzl also conducts inhouse seminars for British and American lawyers and accountants who advise clients with foreign assets or who have family abroad. More on these seminars here: Advising Clients with Assets Abroad

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

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

– – – –

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 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.

Careful with M&A Asset Deals in Germany

Pitfalls of German Contract Law (Part 3):  Many Asset Deal Purchase Agreements must be in Notarial Form to be Valid in Germany

German Law requires certain transactions to be recorded before a Civil Law Notary in order for these agreements to be valid and enforceable. The list ranges from pre-nuptial and marriage agreements, to any real estate related transaction, to the formation of German companies and stock corporations.

One aspect is, however, sometimes overlooked even by German corporate lawyers. Namely, the fact that even assets deals may have to be recorded before a German notary if the selling party in this M&A asset deal transfers its entire business operation (Geschäftsbetrieb) or a defined branch of its business, i.e. an entire sector of the business operation (Teilgeschäftsbetrieb).

The relevant statute is sec. 311 b para. 3 German Civil Code which states:

Section 311b BGB:

Contracts on plots of land, assets and an estate

(1) A contract by which one party agrees to transfer or acquire ownership of a plot of land must be recorded by a notary. A contract not entered into in this form becomes valid with all its contents if a declaration of conveyance and registration in the Land Register are effected.

(2) A contract by which one party agrees to transfer his future property or a fraction of his future property or to charge it with a usufruct is void.

(3) A contract by which one party agrees to transfer his present property or a fraction of his present property or to charge it with a usufruct must be recorded by a notary.

 

If, therefore a German company (GmbH) or corporation (AG) sells its assets and the agreement contains – which is often the case – a so called “catch all assets clause”, then the entire agreement must be recorded by a German Civil Law Notary, even if the assets do not consist of real estate (plots of land etc).

The statute does, however, usually not apply if the seller is a sole trader oder a partnership, i.e. a German Gesellschaft bürgerlichen Recht (GBR), a German Offene Handelsgesellschaft (OHG) or a German Kommanditgesellsachaft (KG), but the details are tricky.

If this formal requirement of German law is not observed in a German M&A assed deal, the entire agreement is null and void (nichtig) which may be found out even many years later. In which case, obviously, all hell breaks loose. This aspect should therefore not be taken lightly.

If the parties wish to avoid the involvement of a German Notary in the transaction, they can either do without a catch all clause or they can agree on English or US law to apply to the asset deal which may, however, create other legal problems. Please note that if the deal includes the transfer of German real property (immoveables in Germany), then the involvement of a German notary is necessary no matter what. The same is true if the shares of a German Limited Liability Company are to be sold and transferred.

For more on German business and corporate law see these posts:

– – –

Experts on German-British and German-American Legal Matters

Since 2003, the German business and corporate law firm Graf Partners LLP specialises in British-German and US-German legal cases. Our German business and corporate lawyers are native speaker level fluent in English, have many years of practical experience with clients from Britiain and the USA and are part of a well established network of law, tax and accounting firms.

Managing partner Bernhard Schmeilzl was admitted as German Rechtsanwalt (attorney at law) to the Munich Bar in 2001 and specialises in international cases ever since, with a focus on German-American and German-English commercial, corporate and also probate cases. In addition to obtaining his German legal exams with distinction, he also graduated from the English University of Leicester where he obtained his Master of Laws degree in EU Commercial Law in 2003.

In 2014, Graf Partners LLP has set up the international litigation department GP Chambers which focuses on providing professional litigation services to British and US-American clients, both on a commercial and a private client level. The Graf Partners litigation lawyers regularly appear before German law Courts throughout the country and provide specialist legal advice, support and advocacy services in all commercial and civil law matters, ranging from contract disputes, corporate litigation and employment, to damage claims, divorces and contentious probate. If you wish us to advise or represent you in a German or cross border case, or if you need an expert report on German law, please call +49 941 463 7070.

If a British Testator relocates to Europe…

… the surviving spouse may be in for an unpleasant surprise

Since 2015, according to the rules of the EU Succession Regulation, the criterion “last habitual residence” of the deceased determines which succession laws apply to the estate. If, for instance, a British national moves to Spain, Germany or France and later on dies there, then the respective national succession laws, i.e. Spanish, German or French succession laws, do apply (except with regard to UK immoveables).

This can cause surprising results, especially if the British expat or retiree did not have a will, because German, French, Spanisch or Austrian intestacy rules vary significantly from those in England & Wales, Scotland or Ireland.

Under German intestacy rules, for example, the surviving spouse only inherits 1/2 of the estate if the deceased had children. And it’s even worse if the deceased did not have any children but his parents or siblings are still alive. In this instance, the surviving (British) spouse is not the sole beneficiary, but instead only inherits 3/4 of the estate. The remaining 1/4 share goes to the parents or (if they are no longer alive) to the siblings of the deceased spouse. This usually comes as quite a shock to the surviving spouse. For details on German intestacy rules see here.

Beware of the “Elective Share” Risk

These foreign rules of intestacy can, of course, be avoided by simply making a last will and testament (an English will is accepted as valid throughout Europe, see here). However, even then there can still be serious implications resulting from the foreign succession rules, which often neither the testator nor his/her spouse nor their English solicitor who drafted the English will are aware of.

The often overlooked problem is that the inheritance laws of Germany, France and many other European countries apply the concept of a statutory compulsory share (mandatory elective share), which means that certain close relatives (usually spouses, offspring and parents) are entitled to a certain share of the estate no matter what, i.e. even if they have been expressly disowned in a will. The concept goes back to the Napoleonic Code (French Civil Code) which contains compulsory inheritance provisions for certain relatives. In particular, children are “protected heirs” and cannot be disinherited. German civil law and the succession laws of many other countries have adopted this concept.

Thus, the (British) children or grandchildren of a British citizen who has permanently moved to Germany or France may be entitled to a huge portion of the estate (up to 50 percent of the entire estate!), even if the last will does not mention them as beneficiaries or only gives them a smaller portion of the estate.

In many cases, these (disinherited) relatives are not aware of their right to make such a claim. However, if they speak to a probate lawyer in that country or if they stumble across this post, they may approach the surviving spouse of the expat / retiree and demand their share.

Thus, if a British national plans to work or retire in another European country, he or she should (i) make a will in order to avoid foreign intestacy succession rules applying and (ii) have that will checked by a succession and probate lawyer who is well versed in international inheritance laws to avoid unpleasant surprises for the beneficiaries later on.

– – –

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 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.

Bernhard Schmeilzl is an expert in international will preparation, estate planning and cross border probate. He also conducts inhouse seminars for British and American lawyers and accountants who advise clients with foreign assets or who have family abroad. More on these seminars here: Advising Clients with Assets Abroad

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

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

LGBT Friendly Law Firms in Germany, Austria and Britain

Although Germany and Britain are comparatively liberal and progressive societies, we are fully aware that the struggle against hate, discrimination and bigotry is far from over.

Our firm of German and British lawyers supports openness, diversity and equal rights for all sexual orientations and gender identities.

We welcome clients from the LGBT community both in Germany and the UK and we provide legal advice in all areas of law, from family law (e.g. same sex marriage, same sex couple adoptions), the preparation of (German or international) last wills, estate and succession planning for same sex couples to – where necessary – anti-discrimination measures at the workplace or elsewhere.

– – –

The law firm Graf & Partners was established in 2003 and has many years of experience with British-German and US-German legal matters.The Anglo-German litigation lawyer team of GP Chambers is well equipped to advise and represent clients from the UK, the USA and other English speaking countries. If you wish us to advise or represent you in a German or international legal matter, just call our main office on +49 941 463 7070.

Preparing International Wills: A Checklist for Clients and their Lawyers

Complete Questionnaire for International Families and Expats who are resident or own Assets in Germany or Austria

If you or your client owns assets in more than one country, or if a beneficiary is resident in another country than the testator, chances are that the executor and/or the beneficiary need to obtain probate in more than one country. Since the EU Succession Regulation neither applies to the United Kingdom nor to Ireland, the option to take out a European Grant does not exist in those cases. Furthermore, the estate may be subject to various inheritance tax regimes.

Therefore, international families and expats should draft their Wills in a way which ensures a smooth transfer of the assets. British or U.S. Wills often create uncertainty in Civil Law Jurisdictions like Germany, Austria, Spain or France. Vice versa, German or French style Wills are often difficult to interpret in regards to the issue of who has become “heir” (Erbe). Thus, in order to avoid legal uncertainties or even disputes between the beneficiaries and executors, the Will should address the probate requirement of all jurisdictions involved. Inter alia, this means to use the specific succession law and probate terminology in the international Will in order to avoid misinterpretation by the probate registrar. There are many “false friends” in international succession law: an executor under English law, for example, is not at all the same as an Austrian “Exekutor”.

There are always more taxes than you think

Also, every testator who finds himself in an international situation should keep in mind the very different inheritance tax regimes of various countries. English solicitors or U.S. lawyers sometimes forget that there may be additional inheritance tax due in the country where the foreign assets are situated or – and this aspect is sometimes overlooked – where an individual beneficiary is resident at the time of the bereavement. While Austria, for example, does not levy inheritance tax at all, countries like Germany and France do tax the individual beneficiary. This is dangerous territory for international succession lawyers. Professional tax and estate planning can often mitigate the overall inheritance tax quite considerably.

Lawyers can create a tailor-made Last Will only if they are fully informed about the testator’s personal situation and his/her objectives. In order to draw up a Last Will that fully meets the clients individual requirements, Graf Partner LLP uses a comprehensive questionnaire and Will preparation checklist (available for download here).  This checklist also helps to facilitate an effective and individual preparation for the personal meeting at the firm.

If you wish to instruct Graf & Partners LLP to draft a Will or to team up with a foreign lawyer to advise in specific areas of German or Austrian law, please feel free to complete the questionnaire and contact our German succession and probate law experts.

German solicitor Bernhard Schmeilzl also conducts inhouse seminars for British and American lawyers and accountants who advise clients with foreign assets or who have family abroad. More on these seminars here: Advising Clients with Assets Abroad

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

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

– – – –

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 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.

 

Is there German Capital Gains Tax when you sell a German Property?

If you buy or inherit German property (whether it is a house, a flat or just a plot of land) and this property is then sold (by you or your heirs) before a period of ten full years has expired, the resulting profit (sale price minus purchase price minus certain related costs like notary fees) is subject to German tax, even if you are not a German tax resident. There are certain exceptions to this rule, e.g. if you have used the German property exclusively as your private residence. If you have inherited the German property, the years during which the legator had already owned the property does count in your favour.

The relevant statute for this capital gains taxation is section 23 German Income Tax Act (Einkommensteuergesetz). The wording of the tax statute is hard to digest even for a German, but in case you wish to try, here you go:

Einkommensteuergesetz (EStG) § 23 Private Veräußerungsgeschäfte

(1) 1Private Veräußerungsgeschäfte (§ 22 Nummer 2) sind: 1. Veräußerungsgeschäfte bei Grundstücken und Rechten, die den Vorschriften des bürgerlichen Rechts über Grundstücke unterliegen (z. B. Erbbaurecht, Mineralgewinnungsrecht), bei denen der Zeitraum zwischen Anschaffung und Veräußerung nicht mehr als zehn Jahre beträgt. 2Gebäude und Außenanlagen sind einzubeziehen, soweit sie innerhalb dieses Zeitraums errichtet, ausgebaut oder erweitert werden; dies gilt entsprechend für Gebäudeteile, die selbständige unbewegliche Wirtschaftsgüter sind, sowie für Eigentumswohnungen und im Teileigentum stehende Räume. 3Ausgenommen sind Wirtschaftsgüter, die im Zeitraum zwischen Anschaffung oder Fertigstellung und Veräußerung ausschließlich zu eigenen Wohnzwecken oder im Jahr der Veräußerung und in den beiden vorangegangenen Jahren zu eigenen Wohnzwecken genutzt wurden; 2. (… not relevant here); 3. (… not relevant here)
(2) Einkünfte aus privaten Veräußerungsgeschäften der in Absatz 1 bezeichneten Art sind den Einkünften aus anderen Einkunftsarten zuzurechnen, soweit sie zu diesen gehören.
(3) 1Gewinn oder Verlust aus Veräußerungsgeschäften nach Absatz 1 ist der Unterschied zwischen Veräußerungspreis einerseits und den Anschaffungs- oder Herstellungskosten und den Werbungskosten andererseits. 2(.. not relevant here) 4Die Anschaffungs- oder Herstellungskosten mindern sich um Absetzungen für Abnutzung, erhöhte Absetzungen und Sonderabschreibungen, soweit sie bei der Ermittlung der Einkünfte im Sinne des § 2 Absatz 1 Satz 1 Nummer 4 bis 7 abgezogen worden sind. 5Gewinne bleiben steuerfrei, wenn der aus den privaten Veräußerungsgeschäften erzielte Gesamtgewinn im Kalenderjahr weniger als 600 Euro betragen hat. 6 (… not relevant here).
.
The profit is then considered to be part of your income in the fiscal year in which the German property is sold, more precisely in which the buyer pays the purchase price. As mentioned above, German income tax is levied on this profit even if otherwise you are not a German tax resident. Whether this profit is also considered to be taxable income in your home country (UK self assessment, US income tax or other) and whether there are double taxation treaties in place for such constellations must be assessed in each individual case.
The above does only apply for private property sales (private Veräußerungsgeschäfte). If the buyer is a business or if a private person buys and sells more than three properties in Germany within a period of five years, then the 10 year exemption is not applicable. In these cases any profit is from selling German real estate is always subject to German income or corporate tax.

– – – –

More information on buying or selling property in Germany, the German Land Registry, the conveyancing process and the rights and duties of tenants and landlords in Germany is available in these posts:

Or simply click on the sections “Property” or “Conveyancing in Germany” in the right column of this blog.

For more information on cross border probate matters and international will preparation see the below posts by the international succession law experts of Graf & Partners LLP:

– – – –

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.

We also advise and represent foreign clients who wish to purchase, sell or lease property in Germany. In case you would like to obtain specific advice on a specific case or need assistance in buying, selling or leasing property in Germany, please contact German solicitor Bernhard Schmeilzl, LL.M. (Leicester) at +49 941 463 7070.

Workshop “Clients with Foreign Assets” for British Inheritance & Probate Lawyers

Why would an English or Scottish solicitor even give a toss about German or Spanish inheritance tax laws or about French or Italian forced heirship rules? Well, for starters, in order to avoid the client’s survivors yelling at him/her some years later because they ran into probate or/and foreign tax problems abroad.

Or, and this is of course the far better reason, to really impress your client with advice on international aspects of estate planning the client would otherwise never have thought of. Are you a solicitor or accountant who advises British clients with assets abroad or relatives living outside the UK? Then you might want to check whether you were already aware of some of the tripwires described in this post on international estate planning and will preparation.

Estate Planning for International Families requires seeing the big Picture

A solicitor who knows the basic principles of other jurisdiction’s succession rules and inheritance tax concepts is much more valuable to his client because such a solicitor can avoid structuring English Wills which may have counterproductive consequences in other countries.

The standard advice given by many English solicitors is still: “If you own assets abroad make a separate Will in each of those countries”. Well, this is simply not enough because such wills need to be synchronised both from a practical probate perspective and in regards to the overall inheritance tax consequences. Also, sometimes the better choice is to deal with the foreign assets directly in the English will.

Since 2003, the succession and tax lawyers of Graf & Partner specialise in international estate planning and will preparation with a strong focus on British-German, American-German, British-Austrian and American-Austrian inheritance cases and probate applications. German lawyer Bernhard Schmeilzl regularly gives presentations and conducts inhouse seminars for British and American lawyers and accountants who advise clients who possess foreign assets or who have relatives abroad who shall inherit or receive gifts or legacies. More on these seminars here: Advising Clients with Assets Abroad

The goal of our seminars on international inheritance and tax law is not to make the English solicitor a Jack of all trades or to expose the solicitor to liability risks. Instead, the goal is to give the solicitor a basic idea about where the English estate planning approach might cause problems elsewhere and then team up with the respective experts from those countries to find the best overall solution for the client and his family.

To give you an impression of the case studies we discuss in our workshops here are a few slides taken from our 90 page power point presentation: Presentation Wills and Estate Planning for International Clients

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

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

Our Munich Office has relocated

Same district, but larger and more modern offices!

Since 1st of June you can find our Munich lawyers in the modern and centrally located Agendis Business Center building on Radlkoferstr. 2. We are looking forward to meeting you in our new office! For those clients who specifically chose our firm because we were located right next to the Octoberfest area: Relax, the new office is only 500 meters south-west of the old one. So you can still drop by the Octoberfest if you feel like having a beer after having listened to our lawyers. Read more on our firm’s website.

Purchase German Property by Online Auction?

Beware of buying German real estate through the internet. It does not work that way in Germany!

Our firm specalises in German-British and German-Amercian legal matters. Thus, we are sometimes contacted by non-German clients who proudly tell us that they have just successfully bought German property by way of online auction, for example from “MIDLAND ASSET MANAGEMENT LTD” or another online auction service provider.

There is just one small problem with this: In order to be valid, German law requires any agreement regarding property transactions (sale of real estate) to be recorded by a German notary (or a German consular officer abroad), see section 873 German Civil Code (Conveyancing):

Section 873 Acquisition of Property by Agreement and Registration in the German Land Registry

(1) The transfer of the ownership of a plot of land, the encumbrance of a plot of land with a right and the transfer or encumbrance of such a right require agreement between the person entitled and the other person on the occurrence of the change of rights and the registration of the change of rights in the Land Register, except insofar as otherwise provided by law.

(2) Before the registration, the parties are bound by the agreement only if the declarations are notarially recorded, or made before the Land Registry, or submitted to the Land Registry, or if the person entitled has delivered to the other person an approval of registration that satisfies the provisions of the Land Register Code [Grundbuchordnung].

 

Thus, any “only auction” of German real estate (plots of land, apartments, houses) is not legally binding at all. It can merely be regarded, at best, as a non-binding letter of intent. If the owner changes his mind, for instance because he found another bidder who is willing to pay more, the online buyer has zero rights.

However, the online auction service providers usually do not explain this non-binding nature of the auction at all. To the contrary, they make it sound as if the “online buyer” is legally entitled to demand property transfer or that the buyer even automatically becomes the owner upon completion of the auction.

Midland Asset Management, for example, only hints at “certain formal requirements” which need to be taken care of. Well, no kidding! The seller and the buyer must appear in person before a German notary (or a consular officer) to actually sign the real sale deed. Everything else is just an empty promise. Buyers usually are not aware of these formal conveyancing requirements and the travel costs, notary fees and translation costs connected with all that.

But, and this is the risky and potentially fraudulent aspect, the online auction service providers do require the “buyer” to pay the full purchase price for the German property up front, i.e. before the sale is officially recorded by a German notary. See, for example, the auction ad by Midland Asset Management on Bidspotter.co.uk:

If, for any reason, the actual sale at the notary’s office does not happen, then the buyer has only a rather weak “undue enrichment” claim against the online auction provider, unless fraud can be proven. Let alone the fact that these providers are often limited companies with virtual offices.

Therefore, do NOT try to purchase German real estate online. But if you absolutely must, do not pay the full purchase price upfront. Instead, inform the online service provider that you are aware of the German conveyancing laws and formal requirements of seeing a notary and discuss with the service provider how this can be effected. If the service provider then runs or tries to avoid this issue, you know that you deal with a shady or incompetent partner.

– – – –

More information on buying property in Germany, the German Land Registry and conveyancing process and the rights and duties of tenants and landlords in Germany is available in these posts:

Or simply click on the sections “Property” or “Conveyancing in Germany” in the right column of this blog.

Does a German Last Will & Testament become void if the Testator later marries or has Children?

Not automatically, but the surviving spouse and/or the child may challenge the Will for being “outdated”. The German legal term is “Anfechtung” according to section 2079 German Civil Code (Section Wills & Probate), which states:

Section 2079 German Civil Code

Avoidance for omission of a person entitled to a compulsory portion

A testamentary disposition may be avoided if the testator has omitted a person entitled to a compulsory portion who is in existence at the time of the devolution of the inheritance, the existence of whom was unknown to the testator when he made the testamentary disposition or who was born or became entitled to a compulsory portion only after the making of the testamentary disposition. Avoidance is excluded to the extent that it is to be assumed that the testator would have made the disposition even if he had known the circumstances.

This statute of German probate law is a so called “Auslegungsregel” (i.e. statutory rule of interpretation of a Will). It is meant to clarify this situation: The testator has made his or her Will at a time when he/she was not married, then later marries but does not modify or revoke the Will, then dies. In these circumstances, if German succession law applies, the Will shall be interpreted as being valid but voidable (anfechtbar). The surviving spouse may challenge this Will by making a formal declaration of avoidance (Anfechtungserklärung) to the competent German probate court. This must be done within a statutory deadline of one year from when the person entitled to challenge the Will has obtained knowledge of the grounds of avoidance.

The same rule applies if the testator has children after setting up a Will under German law. Then the child has the right to void the German will which the testator has created at a time when he or she did not know about this child.

However, this rule of interpretation does not apply if there is no room for such interpretation. If, for example, the testator has explicitly stated in the German Will that this Will shall remain valid even if he or she later marries or has (further) children, then section 2079 German Civil Code cannot be invoked. If the Will itself is silent on the matter but the testator has mentioned that the Will shall remain valid in such situations, then it becomes difficult. Such contentious probate cases can drag on for years in German courts and usually the party invoking section 2079 German Civil Code prevails.

Spouses in Germany often create mirror wills (Berliner Testament, Ehegattentestament) and explicitly preclude (ausschließen) this section 2079 BGB, because they want to protect themselves against the Will being voided if the surviving spouse later marries again or has additional children.

For more information on cross border probate matters, international will preparation and German inheritance tax matters see the below posts by the international succession law and tax law experts of German law firm Graf & Partners LLP:

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

The Anglo-German 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 and tax matters, including the representation of clients in contentious probate matters. We are experts ininternational succession matters, probate and inheritance law. 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.