The German rules about what happens when a person dies without having made a valid will (intestacy), are set out in section 1923 to 1936 German Civil Code (Bürgerliches Gesetzbuch, an English translation being available here.
German Intestacy Rules (Overview Chart)
Intestate succession affects many families because roughly two out of three Germans die without having a valid Will in place. German intestacy rules are very different from those in Common Law countries. Children of the deceased have a much stronger legal position in Germany compared to children under English or US succession law, where the spouse usually receives more than the children.
And there is the famous German “Pflichtteilsrecht” (“forced share” or “compulsory portion”), which appears a rather baffling concept to British or US-American succession lawyers, because it entitles one’s closest relatives to a share in the Estate (up to 50%) even if the testator cannot stand that person (for details see here).
Who gets how much under German Intestacy Rules?
Before we get too technical, let’s look at the outcome in the three most common constellations: Continue reading →
German Litigation Expert Bernhard Schmeilzl of GP Chambers explains the Basics of Contentious Probate
In contrast to the UK, under German law there is no administration of the estate by a personal representative. Instead, the heirs (in German: Erben) have the right to administer the estate themselves. Due to the German principle of direct and universal succession, which is explained in more detail here, the heirs become heirs automatically, if they like it or not. They have to actively disclaim the inheritance before a notary or probate court official if they want to avoid the risk of being liable for the debts of the deceased with their personal pre-owned property (more on how to renounce inheritance here). A rather alien concept for lawyers from a common law jurisdiction.
Overindebted estates are rare, however. Therefore, in most cases, heirs do wish to be recognised as the rightful heirs and want to access the German estate as quickly as possible. In spite of the fact that, due to the principle of direct and universal succession, all rights and obligations of the deceased person transfer automatically, the heir will in most cases still need a certificate of inheritance (called “Erbschein“) to prove that he has been officially recognised as rightful heir, simply because banks, insurers, land registry officials etc. will want to see such a document for their own protection. How such a German grant of probate can be obtained is explained here.
When a British expat lives in Germany for some time, he or she will most probably have a German bank account and other German assets, maybe even have bought property over here. The majority of these British expats have never thought about the inheritance law implications of such foreign assets. They simply assume that UK law applies. This is, however, not always the case. Especially if German probate law and the German inheritance tax office consider the UK citizen to have been domiciled in Germany, then German law applies to the entire (global!) estate. But even if a UK citizen never sets foot on German soil but only invests here, i.e. buys property or company shares, then he / she may be in for some surprises. Or to be precise: their heirs might be.
Let us try to explain the basics of this rather complicated matter of British-German inheritance law cases, using the example of the hypothetical couple Mr and Mrs Liveabroad: Continue reading →
German inheritance law, including inheritance tax law, works very differently from the UK system (for German probate see here and here). While in the UK the estate as such is taxed (with one single nil-rate band of currently 325k GBP being available as tax relief) you find a completely different inheritance tax concept in Germany: Continue reading →
German inheritance law works by the principle of universal and direct succession, i.e. the heirs automatically become the owners and possessors of the entire estate, i.e. all assets that the deceased had owned (by the way: they also inherit all the debts of the deceased). Details are explained here.
Now, what happens if German law applies and there is no last will? It’s fairly easy: Spouses and descendants are first in line. In most cases there is a surviving spouse and one or more children. Then the estate of the deceased is divided between the surviving wife/husband and children as follows:
Section 1371 German Civil Code confers a further quarter of the estate to the surviving wife/husband if – as is the case in 95% of German marriages – they were married according to the statutory matrimonial property regime (the so called “Zugewinngemeinschaft”), i.e. if they have not signed a prenuptual agreement.
the remaining 50 per cent of the estate goes to the child / children
Thus, as a rule of thumb (but as always, there are exceptions to the rule), spouse and children have to split the estate 50/50. If there is no surviving spouse, the child/children get/s everything. Only if there are no children and no spouse then parents, siblings, grandparents etc come into play.
An in depth explanation of what happens when a German dies without a Will as well as a graphic chart of German intestacy rulesare available here.
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.
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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 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.
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.
How to get access to an Estate under German Inheritance Law
When a UK citizen dies while having possessions in Germany (bank accounts, deposits, shares, insurance claims or property), one must first determine whether the estate is governed by German hereditary law and thus falls into the competence of German probate courts: Continue reading →
According to German inheritance law, close relatives have a right to claim a portion of the estate, even if the testator did not want to leave them anything and has consequently disinherited them. This so called “Pflichtteil” is mostly translated with “statutory share“, “forced share” or “compulsory share“. However, it is difficult to find the correct English word, because this concept does not quite exist in the English or US common law systems. And even to many German heirs this concept comes as a surprise.
German inheritance law differs very much from UK law and there are many formal requirements which must be followed. A good starting point for basic information about the law of succession in Germany (or any other European country for that matter) is the official EU website “Successions in Europe“. It answers a few basic questions and contains helpful links for more detailed research.
In our CrossChannelLawyers blog we try to dig deeper in regard to many issues of British-German and US-German succession rules, inheritance tax, estate planning and international probate.
For starters, let us quickly explain some major differences between UK and German laws of succession: