There exist, as we have explained here, fundamental differences between the inheritance law concepts of the UK and Germany. Since UK probate law requires a personal representative, many testators in the UK appoint an executor in their will. In Germany, however, where a “personal representative” is unknown due to the principle of universal succession, the inheritors come into ownership as well as into possession of the estate automatically and directly. Therefore, appointing an executor (Testamentsvollstrecker) is the exception in Germany, used only in cases where the testator expects the future inheritors to quarrel or where the testators will probably still be under age at the time of inheritance. Furthermore – since the concepts are different – the words “executor” and “Testamentsvollstrecker” are false friends, they have similar but not identical legal powers and obligations.
Now, when a British citizen had all or parts of his estate in Germany at the time of his death, there is the need for a German grant of probate (called “Erbschein”). The probate procedure is explained here and here.
In case the deceased had made an English will and has – as is quite common – appointed executors and maybe even trustees then German probate courts are faced with the difficult question, what these terms shall mean in regard to the German part of the estate. The terms executors and trustees have no directly corresponding terms in German law. Thus, it is necessary to interpret the will of the deceased.
This can have great practical consequences, because if the court assumes that the mentioning of an executor in the will has no meaning under German law, then the heirs / beneficiaries can immediately and directly access the estate and will receive the Erbschein without having to deal with any Testamentsvollstrecker telling what they can have and when.
In most cases German probate courts come to the conclusion that the appointment of an “executor and trustee” shall mean that the testator actually would have wanted a “Testamentsvollstrecker” also under German law. The German statutes (in English translation) explaining the rights and obligations of such Testamentsvollstrecker are available here.
If, however, the English will mentions only an executor (without also making him trustee) then many courts argue that the testator did not really want to appoint a German Testamentsvollstrecker, but did instead only mention the executor because of his notion that such an executor was necessary. Would the testator have known that under German law it is not necessary to have a personal representative, then the testator would probably not have appointed an executor – at least for the German part of the estate. This can, of course, be argued with the court depending on the specific facts of the individual case.
Again, the competences and tasks of an “executor and trustee” in English law differ from those of a German “Testamentsvollstrecker”. Let me briefly compare the duties and rights of the institutions in the UK and in Germany:
- An executor under UK law is the legal representative appointed to administer the estate of a person who has died. The role of a trustee is much greater than that of an executor. Being trustee is very likely a long term position and is one of great trust and a high level of responsibility. A trustee is responsible to handle the inheritance, to manage the property on a long term basis. Usually, trustees get some kind of remuneration.
- The Testamentsvollstrecker under German law (Sec 2197 German Civil Code) has comprehensive responsibilities, competences, rights and duties. A Testamentsvollstrecker must (i) provide the heir(s) with an inventory of the objects of the estate subject to the administration (Sec 2215 GCC); (ii) cooperate with German authorities (e.g. inheritance tax office); (iii) administer the estate on a mid or even long term basis including hindering the heir to dispose of the estate; (iv) pay out legacies etc..
The Testamentsvollstecker is therefore close to a trustee but one must bear in mind that German law does not acknowledge an inheritance trust as such.
A person appointed as Testamentsvollstrecker is not legally obliged to accept this function. It may, after all, be a lot of work. However, it has advantages to accept that function if one is also a beneficiary oneself, because the Testamentsvollstrecker has full access to all information regarding the estate and controls the distribution procedure. And, of course, the Testamentsvollstrecker receives remuneration for his efforts.
In case you would like to obtain specific advice in a concrete case or assistance in German probate procedures, feel free to contact the lawyers of the German firm Graf & Partners which are specialized in British-German succession issues. Attorney Bernhard Schmeilzl has years of experience acting as executor and administrator of estates, both in the UK and in Germany.