How to speed up German Probate Applications

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Avoid common mistakes in your application for a German grant of probate (Erbschein)

The basics of the German non-contentious probate procedure are explained in the post How to apply for German Probate. There you can also find an example of what a genuine German grant, i.e. the “Erbschein” (certificate of inheritance) looks like.

For those who want to dig deeper and get really technical about German probate, we now examine the central statutes of German law that are dealing with non-contentious probate matters (for contentious probate in Germany see the post How to challenge a Will in Germany).

The content of the application for German probate

As long as no one involved in the inheritance case (defined by German law as “probate participant”) decides to formally challenge the will and take this to the German Landgericht (High Court) level,  the probate procedure is governed by the rules of the FamFG, which is short for “Gesetz über das Verfahren in Familiensachen und in den Angelegenheiten der freiwilligen Gerichtsbarkeit”, which means “Act on Proceedings in Family Matters and in Matters of Non-contentious Jurisdiction”.

Important note: As I write this post, the English translation of the Act on the government website “Gesetze-im-Internet” has not been fully updated yet with regard to recent changes that were made in the FamFG, so please be careful when using the English version of “Gesetze-im-Internet”) When in doubt, refer to the original German version.

The German probate court (Nachlassgericht), upon application by a beneficiary or executor, will assess the succession case and then issue the German grant (be it an Erbschein or a Testamentsvollstreckerzeugnis) by way of court order (Beschluss) if and as soon as the court is convinced that the applicant is beneficially entitled to the German estate.

Pursuant to section 352 FamFG, in case of an existing will, the testamentary heir or executor must include the following information in the German probate application and submit the respective documents together with the application:

  • Original death certificate
  • Original Will or Wills
  • Information about the decedent’s nationality
  • Information about the place of habitual residence of the decedent prior to death
  • Declaration that the heir(s) has (have) accepted the inheritance
  • Declaration that no one has challenged the will or has initiated contentious probate proceedings
  • The share in the estate of the applicant

The applicant must then give an oath (eidesstattliche Versicherung) that the facts contained in the application are true, in particular that there are no further (more recent) wills. Such oath can (only) be sworn either at the German probate court, or before a German notary or before a German consular officer abroad.

With regard to most German inheritance cases: so far, so good and simple. The paperwork (court certified and apostilled copies, translations etc) may be a bit of a nuisance, but it is manageable.

German probate court still wants to contact next of kin!

However, what can sometimes severely complicate probate even if there is a very simple will, which is not contested by anyone and which gives the entire German estate to one specific person, is section 345 FamFG.

Pursuant to section 345 para. (1) FamFG,

the German probate registrar may (!) decide to include the statutory heirs (gesetzliche Erben) as participants of the probate procedure.

This means that those persons, who would inherit under intestacy rules (i.e. if the will was found invalid), must be contacted and given a chance to raise objections against the will.

In practice, this means that the probate court simply sends a letter to the closest surviving relatives (next of kin) as well as to the surviving spouse (if any and if the same is disinherited).

Those (potential) statutory heirs are then given the chance to enter a formal caveat or to make the court aware of unusual circumstances. If they do not react within a certain period stated in the court’s letter, the grant will be issued to the applicant. Otherwise, the court asseses the objections and the inheritance case may become a contentious probate case.

What if no one knows who the next of kin are or where they live?

In most cases, the next of kin will be easy to find and to contact. They will be children, parents, siblings, nieces or nephews. However, sometimes there are no close relatives known. Or they live in far away countries and have not been in close contact with the decedent.

This situation can be extremely frustrating for the testamentary beneficiary.  If the German probate court has decided to include the statutory heirs in the probate proceedings, the court will ask the probate applicant to provide the names and addresses of the closest surviving relatives of the deceased.

An example: Imagine you have been named as the sole beneficiary in the will of an old friend who lived in Germany — or who lived in Britain but who possesseed some assets in Germany. In both cases you will need to obtain German probate. The will is valid, the testator had full legal capacity and nobody claims any foul play. Still, you will not be able to obtain a German grant of probate until you have shown to the court (i) who the deceased’s closest surviving relatives are and (ii) where they live. This means you need to contact the deceased’s family and do some ancestry research, obtain dozens of death and birth certificates and find out the current addresses of all relevant next of kin. In some cases, this can take years.

As we have cited above, the relevant statute (section 345 FamFG) states the court “may include”. This means the probate registrar has some discretion in the matter. Thus, in situations where the deceased had no children, no surviving spouse, no surviving parents and siblings, we sometimes try to convince the court not to include the next of kin, which would be great-nieces / great-nephews or cousins at best. But the probate court can insist on contacting these relatives nonetheless.

Practical tips for your German probate application

In order to speed up German probate, an application should always contain the names and addresses of the next of kin (i.e. the statutory heirs under intestacy rules). This avoids queries from the court and will save you weeks, if not months, of waiting for the grant. Alternatively, and this is the even more professional approach, you can contact the surviving next of kin yourself and ask them to sign a letter in which they state that they are aware of the probate application based on the will and that they do not intend to raise any objections against said application.

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 enter “probate” or “inheritance” in the search box above.

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. We are experts ininternational succession matters, probate and inheritance law, including international litigation. 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.

Where to File a Lawsuit in Germany

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This Chart explains Jurisdiction and Venue in German Civil and Commercial Court Cases. More information on litigation and legal fees in Germany is available on our expert law blog www.GERMANCIVILPROCEDURE.com

The German Civil Court System at a Glance: Courts, Jurisdiction and Venue

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 and other English speaking countries. 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 in order to contact German lawyer Bernhard Schmeilzl, LL.M. (Leicester), managing partner and head of the litigation department. Bernhard is also frequently asked by British and US Courts and Tribunals or by legal counsels to provide expert reports and legal opinions on German law.

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

What is a “polizeiliches Führungszeugnis”?

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And when do you need it?

The German “polizeiliches Führungszeugnis” is the equivalent of the British “enhanced criminal record certificate” as defined in sec. 115 Police Act 1997, sometimes also referred to as “certificate of conduct”, “good-conduct certificate” or “police clearance certificate”.

The Führungszeugnis is an official document issued on special green paper by the German Bundesamt für Justiz (Federal Office of Justice) in Bonn and looks like this:

The document lists criminal offences above a certain threshold, usually if someone has been sentenced to payment of a criminal fine of 90 daily rates (Tagessätze) or more. There are exceptions with regard to juvenile delinquents. Sex crimes, cases of child abuse or neglect are especially relevant, because anyone who wants to work with children, be it in a kindergarden or a sports club, must present an enhanced police clearance certificate before he or she is allowed to do so. The criminal offences are recorded in the German Bundeszentralregister and the Führungszeugnis is an extract from said central register.

What do your need a Führungszeugnis for?

The German criminal record certificate is required in various circumstances, either because you apply for a job in Germany and the (potential) German employer asks you to provide such a Führungszeugnis. Or you plan to open a restaurant in Germany and wish to obtain a liquor license. In practice, there are three different types of Führungszeugnis: a simple police clearance certificate (einfaches Führungszeugnis), an enhanced certificate (erweitertes Führungszeugnis, as in the example above) and a behördliches Führungszeugnis for official use. The difference is in the content and the degree of detail that such certificates show.

More information on what a German polizeiliches Führungszeugnis is and how to apply for one is available on the website of the Federal Office of Justice here.

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 and other English speaking countries. 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 in order to contact German lawyer Bernhard Schmeilzl, LL.M. (Leicester), managing partner and head of the litigation department. Bernhard is also frequently asked by British and US Courts and Tribunals or by legal counsels to provide expert reports and legal opinions on German law.

Abuse of your Web Shop?

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What to do if your online shop is attacked by criminals: an IT lawyer’s view.

In times of digitalization it is extremely attractive to offer your products online – this has several advantages. No sales room is needed, the offers are available around the clock and there are no annoying sales talks. Sounds good at first? Of course, it is! As long as there are no problems with the web shop…

A real life example of how an online shop can be hacked

Here’s what happened to one of our clients, who runs an online shop in Germany. The client was faced with complaints by angry customers who wanted to know where the ordered goods were which they had ordered through an online shop weeks and months ago. Completely surprised by this, our client had no record of such orders.

What had happened?

Fraudsters have picked our client’s online whop to completely rebuild his web shop in every detail. In other words: They cloned his online shop. The product descriptions, the product pictures and an extremely appealing layout were adopted. Even the imprint was taken over to give the impression that the company of our client operates the website here.

After the order process had been completed, the website – which of course had a completely different domain – displayed a summary of the order and immediately asked the customers to pay. Since the order entry seemed fully legitimate, many customers also promptly paid. It was not even surprising that the payments should be made via bank transfer and the IBAN did not start with DE (for Germany). In reality, of course, the money went to a bank account somewhere in the Baltic States, which had nothing to do with our client.

The customers, which had fallen for this online fraud, which had nothing to do with our client, were still mad at our client. Obviously, our client could not ignore this web shop identity theft.

But what is to be done in concrete terms in the event of such abuse?

First of all, a so-called Whois query should be carried out to find out who is behind the corresponding page. However, it is important to know that the information can be manipulated very easily in the context of a Whois query. What is not so easily manipulated is the registrar’s entry. Based on this information we were able to find out that the website is hosted in the USA.

Okay, but then how does this information help me?

With the information, i.e. who the registrar is, it is very easy to contact the website provider. Here we could quickly submit a so-called DMCA takedown request, so that the website is taken off the net.

Is such a DMCA takedown request enough to take a website off the net?

Usually, yes. This registrar was (to put it mildly) a particularly lazy registrar. This required the involvement of the U.S. registrar regulatory agency (ICANN).

What does ICANN do? 

It is ICANN’s job to address these issues. After we filed the complaint, that is, the registrar did not move, we received a commitment within 96 hours that the problem would be addressed. With this trick, it is quite easy to get even the laziest registrar to deal with the problem.

Within four days after we contacted ICANN, the website was already offline.

Do I have to pay attention to anything in such a procedure? 

Yes, there are many things to consider. For example, it should be clear how to write a DMCA takedown request. Also, it is to know what happens if the registrar is located in a country other than the USA (this is already much more complicated in Russia) and much more.

In such cases, it is strongly recommended to consult a lawyer experienced in IT law if you need or want to remove the website from the Internet quickly.

Especially in case of problems with a foreign registrar it is hardly possible to get the situation under control quickly without a lawyer – with appropriate experience.

German IT & Online Lawyer Stephan Hendel

If you have any questions about IT law, data protection, online commerce or other internet related legal issues, do not hesitate to contact German lawyer and IT law expert Stephan Hendel.

Having a Canadian family background, Stephan is fluent in English and is well aware of the different business mentalities of Anglo-American as well as German entrepreneurs. Our German and international clients appreciate Stephan’s pragmatic hands on approach.

Within the Cross-Channel-Lawyer network, Stephan is the expert for all legal matters surrounding IT, cyber law, data protection issues and compliance with German law.

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

British Solicitors: better brace for a cliff-edge Brexit

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“Brexit not the end of the world”

Theresa May recently stated that a no-deal Brexit ‘wouldn’t be the end of the world’. How reassuring! If you are an English or Scottish solicitor who specialises in international law, such a rock hard Brexit may, however, well be the end of your career as an internation lawyer.

Because in case of an ever more likely no-deal scenario, English solicitors will no longer be able to provide legal services in the European Union. This will probably even be true for English solicitors who are based in Europe and currently work here as Registered European Lawyers. A “cliff-edge Brexit” would void these solicitors’ professional qualifications which are currently recognised in the EU.

Brexit implications for Britain’s legal sector

Already in March 2017 (!), The Law Society has warned of the consequences of a hard Brexit as being “devastating for the UK legal sector“. Back then, a no-deal Brexit was not even conceived as a very realistic scenario. Instead, Brexiteers made statements like these: “The free trade agreement that we will have to do with the European Union should be one of the easiest in human history.“

A no-deal Brexit became much more likely since, which even the “Leave” friendly Sun does acknowledge: https://www.thesun.co.uk/news/6820080/brexit-news-no-deal-what-does-it-mean-uk-theresa-may. But even if some kind of a last minute deal is reached, it’s focus will not be on the services sector, because in Theresa May’s “soft-Brexit Chequers deal” services, which cover 80 per cent of Britain’s economy, are largely skirted over. The cabinet agreed to retain “regulatory flexibility” and accept less EU market access as a result.

Thus, if you are a solicitor with business interests abroad, you might want to plan ahead. Our firm specialises in Anglo-German legal issues and we currently assist a number of English solicitor firms to safeguard their German business. If you are a British law firm with clients in Germany and wish to protect your German business interests, we will be happy to advise and assist.The options range from securing an existing German law firm as a partner firm to creating a cross-border legal entity.

More on Brexit and its implications for UK law firms here.

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 and other English speaking countries. 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 in order to contact German lawyer Bernhard Schmeilzl, LL.M. (Leicester), managing partner and head of the litigation department. Bernhard is also frequently asked by British and US Courts and Tribunals or by legal counsels to provide expert reports and legal opinions on German law.

How to Limit the Personal Liability of Executors and Beneficiaries in German Probate Cases

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Using “Public Creditor Notification” (Aufgebotsverfahren) to restrict liability to the funds available in the German estate

Under German succession laws, a beneficiary (Erbe) is personally liable for the debts of the decedent, i.e. if the debts of the deceased exceed the value of the estate then the beneficiaries must pay the remaining debts out of their own pockets. More here.

Obviously, no beneficiary in his or her right mind wants that result (except for unusual circumstances, e.g. when the family wants to keep under the blamket that the deceased was overindebted). In most cases, the beneficiaries in Germany do not want to be personally liable for the debts of the decedent. The legal tool to avoid such personal liability is to renounce the inheritance (Erbausschlagung)

Making the choice whether to renounce the inheritance is easy if the estate is obviously indebted. However, this is not always evident, especially since the heir only has six weeks (or six months in international constellations) to formally disclaim the German inheritance.

What if it is not yet clear whether the German Estate is indebted?

In these situations, an alternative to the immediate and irrevocable renunciation of the entire German inheritance is the so called  “Aufgebotsverfahren“, i.e. Public Creditor Notifcation pursuant to sec. 1970 German Civil Code (BGB).

In practise this means that the executor or/and the beneficiaries of the German estate request all creditors of the estate by way of public notice procedure to come forward and notify their claims. This enables the executor and the beneficiaries to produce an estate inventory which contains all debts. The main advantage is, of course, that all creditors which do not register their claims until a certain deadline, lose their claims if the assets in the estate are insufficient.

So this approach is somewhat similar to how executors under English law can protect themselves by advertising notices under section 27 of the Trustee Act 1925 in the London Gazette and in local newspapers. However, the German procedure is more formal due to the fact that German succession law uses the principle of universal succession, i.e. a restriction of liability to the value of the estate is an exception from the general principle under german law.

How does the Public Notice to Creditors of the Estate work?

The details of the “Aufgebotsverfahren” are regulated in sections 433 ff. of the German Gesetz über das Verfahren in Familiensachen und in den Angelegenheiten der freiwilligen Gerichtsbarkeit, FamFG (German Act on Proceedings in Family Matters and in Matters of Non-contentious Jurisdiction).

The heir or executor applies to initiate said Public Creditor Notification Proceedings with the competent German Local Court (“Amtsgericht”). The applicant must submit a list of all known creditors, sec. 456 FamFG.

Once the Court starts the Public Notification Proceedings, it demands the Creditors of the Estate (“Nachlassgläubiger”) to lodge their claims until a specific application date. Therefore, the Public Notification is e.g. announced at the Public Notice Board at the court, sec. 435 FamFG. The periods needs to be at least six weeks between the first day of publication and the deadline to lodge a claim, sec. 437 FamFG. After this deadline, the Court issues a Preclusion Order (“Ausschließungsbeschluss”) according to sec. 439 FamFG.

After the deadline, the executors and beneficiaries know what the debts of the German estate are. They can then decide whether to renounce or whether to accept the inheritance. If they do accept the inheritance, the liability is limited to the value of the estate. Thus, if a creditor shows up later, the heir does not run the risk of having to pay this debt out of his own pocket.

However, claims that have not been lodged in time are not necessarily completely worthless. They do indeed still exist and must be paid regardless of the Public Notification Proceeding. However, according to sec 1973 BGB, the heir can refuse to pay these creditors inasmuch as the estate is exhausted by the claims of non-precluded creditors (i.e. those, who have lodged their claims within the Public Notification period). In other words: The Aufgebotsverfahren does not protect the heirs against a creditor showing up later and still demanding payment, as long as the total estate has not yet been used up.

Thus, the liability for debts of the deceased is effectively limited to the value of the German estate. The result may still be that the heir ends up with having nothing of the inheritance left, but at least the heir does not have to satisfy debts of the deceased using his own private funds.

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 enter “probate” or “inheritance” in the search box above.

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. 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.

German Probate: What to do if a beneficiary (co-heir) cannot be found?

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Does anyone know where Great-Granduncle Fritz lives?

In some probate cases (Nachlassverfahren), especially if a decedent had no children, no surviving spouse and no surviving siblings, the next of kin cannot be located, either because the relevant persons have died so long ago that the closest living relatives of the testator can’t be identified (e.g. died in the war) or because they have moved to another country and nobody knows their whereabouts.

Even if only one of several beneficiaries (co-heirs) is missing, this creates a serious problem for the other co-heirs in Germany, because it blocks the distribution of the German estate (Nachlassverteilung) among the members of the community of heirs (Miterbengemeinschaft).

While each member of the community of heirs is able to apply for a German Grant of Probate (Joint Certificate of Inheritance, i.e. a Gemeinschaftlicher Erbschein), such Erbschein will not do them much good. This is because the Erbschein lists all members of the community of heirs (Erbengemeinschaft) and thus each bank, each insurance company, each broker and the German land registry will demand all members of the community of heirs to co-sign any documents. In other words: a community of heirs can only act jointly, section 2040 German Civil Code (BGB).

We know who the (co-)heir is, but not where he or she lives

In this situation, it will not help to consider curatorship (Nachlasspflegschaft) for the German estate pursuant to sec. 1960 German Civil Code. A curator of the German estate is appointed by the German Probate Court only in cases when the heir(s) is (are) completely unknown and need(s) to be identified. More on this here.

If, however, it is well known who the heir is, but the same just cannot be located and contacted, the legal requirements for appointing a curator of the German estate are not fulfilled.

In these situations, i.e. for a known heir of adult age whose residence is unknown, a so-called “Curator in absentia” (“Abwesenheitspfleger”) has to be appointed by the competent German Guardianship Court (“Betreuungsgericht”), see section 1911 BGB. Thus, in these constellations, the task is not to legally assess who the beneficiary is but instead to protect the interest of a known beneficiary who is currently absent and cannot be contacted.

The German Guardianship Court (Court of Protection) is a department of each German Local Court (“Amtsgericht”), as are the German Probate Registries (Nachlassgericht) and the German Land Registries (Grundbuchamt).

The court appointed curator in absentia protects the absent heir´s interest in the estate. The main duty is to preserve the inheritance for the absent heir until he or she can be contacted. In practice, this means that the monies will be kept on a separate escrow account. If, however, there are immoveables (property) in the estate, matters get complicated, because the curator in absentia will only agree to selling such property / real estate when absolutely necessary, for instance to repay the deceased´s debts. If such a sale is not necessary then the absent co-heirs effectively blocks the distribution of the estate. The curatorship ends once the heir is found and is able to deal with the inheritance, sec. 1922 BGB.

Summary: Estate Curatorship under German Law

The difference between these various forms of curatorship is that a Curator for unknown heirs (Nachlasspfleger für unbekannte Erben) acts on behalf of one or more persons, not exactly knowing for whom. In contrast, the Curator in absentia (Abwesenheitspfleger) is appointed to represent a well-known specific person who simply cannot be contacted.

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 enter on the “probate” in the search box above.

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. 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.

Entangled in German Probate Proceedings?

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Renounce Inheritance against Compensation Payment

In this post, we reveal a simple trick how to be released from the duties and obligations of being a German co-heir while still obtaining a portion of the German estate. The buzzwords are “Verpflichtung zur Ausschlagung gegen Abfindung“, i.e. contract to renounce a German inheritance against compensatory payment (make-up pay).

Background: The Basics of German Probate and Estate Administration

In previous posts, we have explained German succession rules, the principle of direct, automatic and universal accession (Prinzip der Universalsukzession) and the so called Community of Heirs (Erbengemeinschaft):

– Important Facts on German Laws of Succession and German Probate

– The Infamous “Community of Heirs” in German Inheritance Law

In case you have made in inheritance in Germany, either because you are mentioned as a beneficiary in someone’s will or due to German intestate succession rules, you may find yourself confronted with complicated and costly probate issues. You need to (co-)instruct a german probate lawyer to file the probate application, to submit the German IHT forms and to deal with the German estate. Then you are expected to fly to Germany to give the oath at the local probate registry. Worst case, you dislike the co-heirs and cannot come to terms with them, for instance about whether to sell the German property.

“Let me out of here!”

You can get rid of all these issues by simply renouncing the inheritance, of course (more here). But then you lose everything, right? Well, not necessarily. You can make an offer to the other beneficiaries (co-heirs):

“I will renounce my inheritance if you pay me X amount as compensation for my share in the German estate.”

If the co-heirs are smart, they will be very tempted, because this makes probate proceedings easier and there will be one less person to deal with when later distributing the estate.

Under German law, such a “Vertrag über Erbausschlagung gegen Abfindung” is permitted and — surprinsingly — it does not even need to be in notarial form. While even an oral contract would be valid, such an agreement to renounce against compensation payment should obviously be made in writing.

To avoid misunderstanding: the renunciation itself must then later on be made before a notary or German consular officer (see. section 1945 German Civil Code). But the agreement in which someone enters into the obligation to (later) declare the renunciation does not have to be in notarial form (OLG Munich OLGE 26, 288; Gothe MittRhNotK 1998, 193).

But careful: This option is only available as long as the beneficiary who want to leave the community of German heirs has not already declared to accept the inheritance. Such acceptance can be made either by simple declaration or even by “telling behavious” (schlüssiges Verhalten), e.g. by accepting a partial payment from the estate or by taking certain assets which are part of the estate. So if you consider to leave the community of heirs against compensation, do not prematurely send out letters stating “I have inherited”.

How much do I get for my share in the German estate?

How much the other beneficiaries are willing to pay you to leave the community of heirs and whether the co-heirs shall have to pay that amount before you then formally declare the renunciation or vice versa can be freely negotiated between the heirs. The parties can also agree on partial payments, half at the time of signature of the renunciation obligation agreement, the other haft after the renunciation has actually been declared vis-a-vis the German probate court.The amount can even be left open if the estate needs to be professionally evaluated first. Then the parties can agree on some formula, e.g. 20% of the net estate after costs and taxes.

Our firm has drafted hundreds of such agreements and will ge glad to assist.

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 enter on the “probate” in the search box above.

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. 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.

Does anyone know about Great-Granduncle Fritz?

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What to do in Germany when an Heir (Beneficiary) cannot be found

In Germany, due to the principle of universal succession (which is governed by  §§ 1922, 1937 BGB of the German Civil Code), it is the heir´s duty to look after the estate. Under German inheritance law, there is no personal representative to take possession of the estate. The German Probate Court (“Nachlassgericht”) will also not interfere with the administration of the estate. The Court will only act if someone applies for a German grant to be issued. Then it will assess whether the person(s) applying for the grant are the rightful heirs. While, in theory, the German probate court is obligated to actively research the legal heirs (Amtsermittlungsgrundsatz), in practice the court will merely demand the probate applicant to submit the relevant information and necessary documents (i.e. death certificates, birth certificates, marriage and divorce certificates).

How to resolve the problem of unknown relatives in German Probate Applications

Problems often arise when the deceased died intestate and had no close relatives who are willing and able to apply for an official certificate of inheritance (“Erbschein”) from the Probate Court and to take possession of the estate. In quite a large number of inheritance cases, distant relatives often have no contact with or don´t even know about their kinship and the potential heirship that accrues to them. The grandfather or great-grandfather generation often died or went missing in the war, persons registers were also sometimes destroyed due to the war. In these cases, it is very hard to demonstrate to the German probate court who the closest living relatives of the decendent are. Researching these relatives sometimes takes years during which time it is unclear who is entitled to the estate.

Who protects the German estate while the next of kin are being investigated?

If this happens, according to section 1962 BGB, the German Probate Court has a duty of care to safe-keep the estate and initiate an official investigation of heir(s). According to section 1960 para. 2 BGB, there are various legal protective measures which the court can take, such as affixing of seals, payment of estate monies into court for safekeeping, deposition of securities or imposing a catalogue of the estate. What needs to be done in a specific case is up to the Probate Court´s discretion. In practice, the route most often taken is for the court to appoint an official curator for the estate, section 1960 para. 2 BGB (“Nachlasspfleger”). Read more on “Nachlasspflegschaft” in cases where the estate may be indebted in this post.

How does the Court appointed German Curator proceed?

The curator, who is usually a lawyer specialised in matters of succession law, is appointed by the competent German probate registry (Nachlassgericht) according to §§ 1962, 1789 BGB. This is what a German court order appointing an official estate curator looks like:

German Court Order Appointing an Estate Curator (Bestellung eines Nachlasspflegers für unbekannte Erben)

The curator is instructed (and authorised) by the German probate registrar to take possession of the entire (German part of the) estate in order to safe-keep it on behalf of the (currently still unknown) members of the community of heirs. His duties are listed in the German Civil Code in sections 1806, 1812 ff. BGB.

What does “Ermittlung der Erben” mean?

Furthermore, the curator has the obligation to start an investigation to identify and contact all co-heirs according to the order of succession which is explained in this post: German Intestacy Rules.

As a first step, the curator will draw up a “family tree” chart in order to get an overview about the kinship of the deceased. If there are no close relatives, it may get difficult to identify the true heirs. Distant relatives, who potentially never knew the deceased may have moved to foreign countries or they may not respond because they think the curator is a fraudster. A curator must therefore be skilled in “detective work”.

Once the curator has been able to ascertain the next of kin who – if more than one person – form the community of heirs (Erbengemeinschaft), each one of them is entitled to apply for an heir´s certificate (§ 2353 BGB) at the Probate Court, which then certifies their respective share in the estate of the deceased. The Probate Court will identify the kinship by birth, marriage and death certificates. When heirs are citizens of another country, the Probate Court will, at least, require legalised copies plus certified translations of the same. It is the duty of the curator to take care about the regulatory matters, to contact family members in Germany and abroad and to collect all necessary documents for the probate application.

Once the certificate of inheritance is issued, according to § 2365 BGB, there is a legal presumption of its veracity, i.e. unless challenged by anyone, the beneficiaries mentioned in the vertificate are able and permitted to administer and distribute the estate among themselves.

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. 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.

Indebted Estate: How do avoid inheriting your German Relatives’ Debts

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Make sure to renounce (disclaim) an Inheritance from Germany if you fear that the Decedent had severe Debts

For English lawyers it is a rather shocking concept: The relatives of a deceased person or the beneficiaries mentioned in a Will can be fully personally liable for the debts of the deceased. Without any limitation.For details see here.

Hard to understand from the perspective of Common Law jurisdictions, but this is exactly what the German legal concept of “universal succession” (Gesamtrechtsnachfolge) means: The heir steps into the shoes of the decedent. The entire estate passes onto the heirs / beneficiaries. A personal representative is not necessary (Details on German succession rules here).

Of course, no German wishes to inherit debts. Thus, German statutory succession law does provide for a solution: the so called “Erbausschlagung”, i.e. renouncement of the German inheritance.

To avoid an estate in debt passing on to the heirs who then become liable for it, said heirs (whether under testate or intestate succession rules) can make a formal declaration of renouncement (Erklärung der Erbausschlagung). After such valid renouncement, which must be made within a specific deadline, that person is no longer considered to be an “heir”. Of course, this also means that the person who has renounced the inheritance has also lost all other claims. Thus, the renunciation of an inheritance it is an all or nothing approach.

In cases where it is unclear whether the estate is really over-indebted, it may be the wiser approach to apply to the German court for the appointment of an official estate administrator (Nachlassverwalter) under sec. 1975 German Civil Code. This official estate administrator takes possession of the estate, pays all debts and hands over the residuary estate – if any – to the heirs. Of course minus his fees and costs.

Which German Probate Court do I need to contact for renunciation or the appointment of an estate administrator?

According to German probate court procedure regulations (Sec. 343 FamFG), the renouncement must be made at the probate court (“Nachlassgericht”) competent for issuing the grant. In most cases, this is the court in the district where the deceased had his or her last habitual residence in Germany.

In case a German citizen passes away without having had a residence in Germany, the principal probate registry in Berlin is competent for the proceedings:

Amtsgericht Schöneberg – Abteilung Nachlassgericht, Ringstraße 9, 12203 Berlin, Germany

If a non-German national passes away who did not have a residence in Germany, the court where the assets are located is competent. In case there are assets in multiple parts of Germany, the court which is is approached first becomes competent for all assets in Germany.

Formal Requirements and Deadlines

The acceptance and renouncement of a German inheritance is governed by sec. 1942 to 1966 BGB (German Civil Code). The heirs must declare their renouncement to the competent German probate court within six weeks after being notified about the death and their entitlement as heirs.

This deadline is extended to six months if (i) the heir was outside of Germany at the time of death (irrespective of his/her actual habitual residence) or  (ii) if the deceased had his sole residence outside of Germany.

If an heir (regardless of whether appointed as such in a will or whether an heir under intestacy rules) does not validly renounce within the legal deadline, that person is legally deemed to have accepted the inheritance. Then it becomes really difficult to avoid liability for debts of the deceased.

The renouncement has to be recorded at the competent German probate court. Alternatively, it can be given in writing as long as the signature is certified by a public servant (“öffentlich beglaubigt”). The certification can be carried out by a German notary public (“Notar”) or at a German embassy (German Mission) abroad, in the UK this is possible in London and Edinburgh.

The required wording of such a renouncement (disclaimer) of a German inheritance is explained here.

Please note that the formal declaration of renouncement only becomes effective once it is received by the competent German probate court and not already when your signature is being certified, for instance at a German Mission abroad. This must be kept in mind when making the appointment, i.e. there must be sufficient time for sending the original document to the German probate court (a fax or email transmission is not sufficient).

It is not possible to make a conditional renouncement or to renounce only with regard to parts of the estate.

How to renounce on behalf of a minor

In case a parent renounces, then the right of inheritance usually passes on to his/her child or children. In these cases, the right of inheritance has to be renounced for the children as well. In certain situations, the family court’s approval is required and must be submitted to the competent probate court within the above mentioned deadline. The family court’s approval is, however, not required if the minor (only) becomes an heir because the parent who legally represents the minor has already renounced the inheritance. In other words: The law assumes that the parent had good reason to renounce for himself. Thus, is is assumed that the renunciation is also in the best interest of the child. If, however, the child is directly appointed as an heir in a will, then the parent needs the court’s consent to declare a renouncement on behalf of the child.

Certification procedure at a German Embassy abroad

For a certification your identity has to be established by presenting your valid passport or state ID card (Personalausweis). You must also provide a current proof of address (e.g. council tax bill or utility bill). And you need to bring with you the renunciation declaration, i.e. the wording explained above.

After certification of your signatures you will need to send the form to the competent German probate court (see above section “competent court”). Further correspondence regarding receipt and validity of the renouncement has to be carried out directly between yourself (or your legal counsel) and the German probate court. Please keep in mind that the court language will be German only.

Court Fees

A renouncement usually involves two separate fees, one charged by the German Mission for certification, another for the probate court proceedings. The fee payable cash at the German Foreign Mission is the equivalent of 20 Euros in Pounds Sterling according to the day’s exchange rate. The probate court’s fee will depend on the value of the estate.

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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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 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.