How to Access the German Estate of your Adoptive Parent: A Practical Guide
The German Inheritance Law Situation if Your Adoptive Parent Owned German Assets
You were adopted as a child in the USA (or another non-EU country) many years or even decades ago and you quite naturally think of your adoptive parents as your “real parents”. Sadly, one of your adoptive parents has now passed and that parent owned property or has held a bank account or other investments in Germany. Since a US Grant or a Trust Deed is not recognized in Germany, you need to go through separate German probate proceedings to obtain a German Certificate of Inheritance (called Erbschein).
If your adoptive parent has made a will which covers Germany and you are explicitly mentioned as an heir or executor, you have dodged the problem I discuss in this article. If, however, your adoptive parent has either not made a will at all, or the will does not cover Germany or it is not recognized as valid in Europe, then you are in for an unpleasant surprise.
Inherit as an Adopted Child in Germany
As a rule, under German law persons who have been adopted as minors, have the same rights as biological children, including full inheritance rights. However, if the adoption took place outside of Germany before the modern Hague Adoption Convention kicked in, such foreign adoptions are not automatically recognized by German probate courts.
In practice, this means, that you cannot simply present a legalized (i.e. apostilled) copy of the United States Decree of Adoption as proof that you are entitled to your inheritance.
Instead, a German court must formally rule on the question whether the adoption is valid and whether it constitutes a so called “strong adoption”, i.e. whether, legally, the adoptive parents have fully “replaced” the biological parents.
Even worse: The German probate court (Nachlassgericht) cannot rule on this matter implicitly, i.e. as part of the probate application proceedings. Because the probate court simply has no jurisdiction in such adoption matters. Thus, even if the probate court judge is fully convinced that the US adoption was in order and even if nobody (for example siblings or half-siblings) raises any objections, the Nachlassgericht cannot issue your certificate of inheritance (Erbschein) until your adoption is formally cleared by a specialized German family court (Familiengericht), which will take four to six months easily. Thus, to get access to your German inheritance, you must proactively trigger this recognition process.
The Adoption Recognition Process in Germany
This is what you need to do:
1. File for Formal Recognition: You must submit a formal application for a procedure for recognition and determination of effects (Anerkennungs- und Wirkungsfeststellungsverfahren) under the German Adoption Effects Act (Adoptionswirkungsgesetz (AdWirkG)).
2. Locate the Correct Court: Your application cannot go to just any local family court because the matter is deemed to be complex and only certain family courts may deal with such international adoption matters. The application must therefore be sent to a specialized district court located at the seat of a Higher Regional Court (Oberlandesgericht (OLG)). The correct court depends on where you live today.
If you live in the USA: Apply to the specialized court responsible for the last German place of residence of your deceased adoptive parent (letzter gewöhnlicher Aufenthalt).
If you live in Germany: Apply to the specialized court responsible for your own current residential district in Germany.
If the deceased parent had never lived in Germany and you are also not a German resident, then the District Court Berlin Schöneberg steps in as a fallback.
3. The Hassle of Gathering the Required Documents: The most annoying and time consuming aspect is that you will need to present to the German court not only your official US adoption records (the valid Decree of Adoption accompanied by an international authentication, called apostille, and a certified German translation) but often also many other documents which you may or may not have readily available, e.g. your initial birth certificate naming your biological parents, your amended birth certificate naming the adoptive parents, any name change documents, marriage certificates etc.German courts will stubbornly request that you submit all these documents (legalized and with certified translations) before they rule on the recognition.
Is there a Short Cut?
If you are in possession of an amended birth certificate which gives the names of your adoptive parents, this birth certificate is usually accepted as proof that you are the child of the deceased. In these cases, the German probate court never learns about the fact that you are an adopted child.
However, this approach does not work if – for some reason – the court is aware of the fact that you were adopted, either because the fact is apparent from the birth certificate itself, or because some third party (another child of the deceased) challenges your right to inherit from your adoptive parent.
For further information on inheritance, probate proceedings (Nachlassverfahren), and inheritance tax in Germany, please see these articles:
The law firm Graf & Partners has 25 years of experience with British-German and US-German probate matters, including the representation of clients in contentious probate matters. We 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.
Featured picture licensed from Magnific.com
