The Basics of British-German Inheritance Cases
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:
Dr Liveabroad is an engineer who moved to Germany, together with his wife, in 1985 to work for Siemens. After renting an apartment for a few years the couple bought a house near Frankfurt which they jointly own. Mrs Liveabroad also owns a small house in England which the couple use a few times per year. The couple have an adult daughter who also lives in Germany. Mr and Mrs Liveabroad have each made a separate last will and testament under English law. Therein they each appoint the respective other spouse and a solicitor as executor and trustee. They each give their respective estate to a discretionary trust fund that holds the property for a period of 125 years. Beneficiaries are the respective other spouse and their issue.
What happens if the Liveabroads die in a car accident?
I. Principles of German Law of Succession
German law applies the principle of universal succession (Sec 1922 German Civil Code), i.e. the heir (or the “community of heirs” if more than one) automatically assumes the legal position of the deceased in regards to the entire estate (positive and negative assets). This takes place in the “second of death”. Thus, the estate does not have to be transferred to the heir, rather the heir is automatically owner and possessor of all assets, even the negative assets. This means the heir is also personally liable for all debts of the deceased! To avoid such personal liability the heir must disclaim the inheritance within a period of six weeks (Sec 1944 German Civil Code)
Due to the principle of universal succession there is, in contrast to English law, no need for a personal representative or executor. In Germany, the appointment of a “Testamentsvollstrecker” (similar to an executor) is the rare exception which must be explicitly chosen in the will. The tool of Testamentsvollstreckung is mainly used if the testator expects his heirs to quarrel later, or if the (potential) heir is still under age or mentally disabled. Or if it is a complicated estate (e.g. a business) that requires an expert to sort out or manage.
The practical problem is that many English wills are not quite clear on the issue of who the heirs are from a German perspective. This can lead to delays and disputes as I will explain in detail below.
II. Importance of Domicile
(i) For national Laws of Succession
Somewhat simplified, the central criterion for the question which country’s law of succession applies is “domicile”. From the perspective of German law (see Article 25 para 2 EGBGB) the situation for a UK national is this:
Domicile in Germany
UK real estate => English law
Moveable goods (UK and Germany) => German law
German real estate => German law
Domicile in UK
UK real estate => English law
Moveable goods (incl. in Germany) => English law
German real estate => German law
In other words: In terms of actual property (plots of land, houses, apartments) there will always apply the respective national laws of succession. However, in terms of all other assets (bank accounts, company shares, insurances, paintings, valuables etc.) the domicile criterion decides which national inheritance laws shall apply.
Since the Liveabroads will be seen (by German authorities) to have their domicile in Germany this will have severe implications on their English wills. If the UK authorities consider the Liveabroads as domiciled in the UK then it becomes really complicated and potentially expensive (double inheritance taxation).
(ii) For German Inheritance Tax
The relevant section 2 of the German Inheritance Tax Act (Erbschafts- und Schenkungssteuergesetz) regulates:
§ 2 Persönliche Steuerpflicht
(1) Die Steuerpflicht tritt ein:
1.) in den Fällen des § 1 Abs. 1 Nr. 1 bis 3, wenn der Erblasser zur Zeit seines Todes, der Schenker zur Zeit der Ausführung der Schenkung oder der Erwerber zur Zeit der Entstehung der Steuer (§ 9) ein Inländer ist, für den gesamten Vermögensanfall (unbeschränkte Steuerpflicht). Als Inländer gelten:
a)natürliche Personen, die im Inland einen Wohnsitz oder ihren gewöhnlichen Aufenthalt haben, …
In practice this means that German authorities will – for inheritance tax purposes – consider someone as an “Inländer”, i.e. domiciled in Germany, when that person was living in Germany at the time of his death. Thus, from a German tax perspective, German inheritance tax is due on the entire estate of both Mr and Mrs Liveabroad, i.e. all their respective assets worldwide.
This is, however, not as dangerous as it may seem at first glance. As is explained in detail here, the German inheritance system works very differently from the UK concept. In the UK, the estate as such is taxed and there is one single nil-rate band of currently 325k GBP available, the excess amount being taxed with a rather hefty 40 percent.
Very different in Germany: The German tax authorities do not look at the estate as such but they look at the personal gain of the individual heirs. This individual gain is taxed depending on the degree of blood relationship of the beneficiary to the legato (for details and a table of tax rates and tax exemptions see here).
Because of the high personal tax exemption amounts for spouses and close relatives German inheritance tax only kicks in when the estate value exceeds a million Euros. If a German testator leaves behind a wife and two children he can pass on 1.3 million Euros without any inheritance tax being due. In reality, the tax free amount is actually even higher, because houses or apartments that are used as family residence can be passed on completely inheritance tax free on top of the personal tax exempt amounts. Plus active businesses can be transferred with a tax privilege if the business continues to trade for a certain period without significantly reducing the employee head count.
For the sake of completeness: Inheritance tax paid in the UK (or another country) will under certain circumstances be credited against German inheritance tax dues. However, in regards to UK taxes this does not happen automatically but the heirs must apply for this within a period of five years.
Bottom line: The Liveabroads, or rather their heir(s), need not worry too much about German inheritance tax. While it may be the usual hassle in regards to necessary paperwork (because every beneficiary must submit a personal inheritance tax declaration), the tax exempt amounts should either suffice to be able to avoid German tax completely or the child will only be taxed with 7 or 11 percent for the amount that exceeds the tax exemption.
III. Assessment of an English Will from a German Perspective
Now, will German probate even accept the existing wills made by Mr and Mrs Liveabroad? And if so, what will German probate and German tax office think of the legal construct of the English trust fund?
(i) Formal Requirements
German law requires wills to either be written and signed by one’s own hand (holographic will, see Sec 2247 German Civil Code) or be declared before a German notary (so called “public will”, see Sec 2232 German Civil Code).
However, as an exception to this rule, German law also accepts wills that are made in other forms when, inter alia, the testator makes a will that complies with of the law of the country of which the testator was a national at the time when he made the testamentary disposition or at the time of his death (see: Sec 26 para 1.1 Introductory Act to the Civil Code).
Thus, the existing wills of the Liveabroads will be accepted as valid wills regarding formal requirements.
(ii) Substantive Assessment
As explained above, German inheritance law works with the principle of universal succession. The first and most important question any German lawyer, including the judge at German Probate Court (Nachlassgericht), will ask is: Who is the heir (Erbe)? This is because the estate (at least the German property, maybe also foreign moveables) must be attributed to those heirs. German land registry must for example enter into the Grundbuch, who is now the owner of German property.
The Finanzamt (German tax office) will ask the same question because, as described above, the heirs are being taxed personally, not the estate as such.
In other words: Under German succession law everything centers around the heir (or the community of heirs).
In our example case, the existing English wills of the Liveabroads do not really provide a clear answer to this question, because the estate is given to a testamentary discretionary trust to hold this estate for 125 years. Such a “testamentary trust” is, however, not accepted under German law for inheritance law purposes. It is “nicht rechtsfähig”, i.e. not a separate legal entity. Only legal bodies can be heirs under German law, i.e. individuals, companies etc. If a German testator wants to achieve a similar result to a UK style trust this requires the formation of a ”rechtsfähige Stiftung” (German trust foundation), which is rather complicated and expensive. Setting up a UK style trust in an English will does not fulfill the requirements for creating a German Stiftung.
In short: German probate court and German tax authorities need to determine who – from a German perspective – has become heir. If this is not clearly answered in an existing English will, German probate court will have to interpret what the English will would mean under German law. The most probable result would be that German probate court would:
- either consider the beneficiaries named in the will and living at the time of the case of succession as heirs
- or reason that the English will does not designate any heir(s) and the court may therefore apply the German intestacy rules; in the example of the Liveabroads this would mean there is a community of heirs (Erbengemeinschaft), consisting of the surviving spouse (entitled to 50% of the estate) and the child.
The appointment of executors and trustees in an English will is, however, not completely without effect in Germany. It will most probably be interpreted by German probate court as a so called “Dauertestamentsvollstreckung” (permanent executorship). However, German law restricts such executorships to a 30 year time limit or to the lifetime of the executor.
IV. What to do when there are German Assets?
An easy way to avoid this ambiguity in regards to how German probate court would interpret an English will could be to complement such will by adding a clause such as:
“For the part of my estate that falls under German law, in particular the real property in …, I hereby appoint as my heirs … and as Testamentsvollstrecker I appoint …”
This is, of course only one option and each individual case must be evaluated thoroughly from a UK and a German perspective.
For more information on German inheritance law and German probate procedure see here. or contact Rechtsanwalt Bernhard Schmeilzl, LL.M. (Managing Partner) at +49 941 463 7070
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For more information on German law and the German legal system see the bilingual brochures “Law – Made in Germany” (free download here) and “Continental Law” (free download here). If you wish to look up specific German legislation you can find central German statutes on the website of the German Department of Justice (here), including an English version of the Code of Civil Procedure. The German Civil Code (Bürgerliches Gesetzbuch) is available for download here: German_Civil_Code_in_English_language.
The law firms Graf & Partners (Germany) and Lyndales (UK) have many years of experience in civil and business law matters as well as litigation. So, should you need assistance with British-German legal issues do not hesitate to contact us by email at: schmeilzl [at] grafpartner.com