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

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.

Austrian Probate: How to Access Assets in Austria?

British Testator owned a Bank Account in Austria: Will an English Grant be accepted in Austria?

No, unfortunately, it will not. If a British person who owns assets in Austria dies, the personal representative needs to obtain a separate Austrian grant of probate. The English grant is rather worthless in Austria, just as an Austrian (or German or French etc) grant of probate is not being accepted within the United Kingdom, because the UK has opted out of the EU Succession Regulation (even before Brexit).

What kind of Austrian grant needs to be obtained depends on the circumstances of the case:

  • If the decedent was an Austrian national –OR– if the decedent was habiltually resident in Austria –OR– if he/she did own property (immoveables) there, then the comprehensive Austrian Probate Procedure is unavoidable, the so called “Verlassenschaftsverfahren”. This involves significant paperwork and the executor(s) / beneficiaries must go through an Austrian notary public (Notar).
  • If the decedent did not live in Austria and owned exclusively moveable assets there (e.g. an Austrian bank account), then a simpler and quicker probate procedure is possible under Austrian law, the so called “Ausfolgungsverfahren” (delivery procedure). This is similar to “re-sealing” a foreign grant. It still requires an Austrian court order, the submission of original documents and certified translations, but the overall procedure is much quicker and simpler.

If, for instance, a deceased British citizen owned a bank account in Austria but his/her main estate was located within the UK, then the executor or administrator of the UK estate can use the English grant (i.e. grant of probate or letter of administration) and apply to the competent Austrian probate court to be accepted by court order (Gerichtsbeschluss) as the “entitled person” (berechtigte Person) with regard to the moveable assets in Austria; see section 150 Austrian Ausserstreitgesetz and sec. 10 EU Succession Regulation.

This means, however, that the probate application in Austria cannot be made until the English grant has been issued. In practice, these Austrian bank accounts or other moveable assets cannot be accessed quickly. And even after the English grant has been issued, there are quite some formal requirements which need to be dealt with. Because even for this simplified venue of an Austrian probate application, the court needs to be provided with the following documents:

  • An original copy of the English Grant (ideally the “yellow” copy so the Austrian court definitely believes that it is an original; otherwise an apostille would be necessary)
  • An original copy of the death certificate (or a legalised, i.e. apostilled copy of the same)
  • Official proof of the decendents nationality.
  • All executors mentioned in the English grant will have to sign the application
  • The English Grant and the death certificate will need to be officially translated by an Austrian, court admitted, translator. Whether the English will (if such a will exists) must also be translated depends on the court.

The Austrian probate court fees and the fees of the Austrian civil law notary (who will be instructed by the Austrian probate court to contact the bank) will depend on the value of the bank account. As in Germany, there are statutory fee tables in Austria which determine the legal costs of a probate case.

We saved the best news for last: As complicated as the Austrian probate procedure may be, there is no inheritance tax in Austria. None whatsoever.

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For more information on German-British and Austrian-British probate matters and international will preparation see the below posts by the international succession law experts of Graf & Partners LLP:

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.

How to deal with Estates in Austria

Probate Proceedings in Austria are very different from those in Germany

If a decedent who was not resident in Austria owned any assets in Austria at the time of his or her death, this Austrian Estate can only be accessed after going through formal Austrian Probate.

Neither an English Grant of Probate nor a German Certificate of Inheritance will enable the executors or beneficiaries to access the Austrian assets, because Austrian banks, brokers, insurance companies and other institutions will ask for a Grant of Probate (“Einantwortungsbeschluss”) issued by the comptenent Austrian Probate Court. In fact, the situation in Austria is considerably more complicated and costly compared to Probate proceedings in Germany or in the United Kingdom. This is due to the fact that Austrian Probate Courts take a much more active role in the administration of an Austrian estate. This generates significant and sometimes unavoidable probate court costs.

Now, what needs to be done if there are Austrian assets?

Under Austrian law, the following rules apply to estates in Austria of persons resident abroad at the time of their death:

Upon the testator´s death, the estate falls to the jurisdiction of the Austrian Probate Court (Verlassenschaftsgericht). The decedent’s assets in Austria are automatically sequestered, i.e. only persons authorised by the Austrian Probate Court (Verlassenschaftsgericht) can deal with them. In contrast to Germany, Austria does not accept any trans-mortal powers of attorney, i.e. any powers of attorney given by the deceased authorising third parties to operate his/her bank accounts or stocks dossiers etc expire on the decedent’s death.

Which local probate registry shall have jurisdiction is determined by whether the decedent owned real estate (immoveables) in Austria or, if not, where the majority of the moveable assets are (e.g. bank accounts).

The Austrian Probate Court will request the following documents (originals or certified copies) to be submitted:

  1. the death certificate
  2. official proof of the testator´s nationality at the time of death, unless this fact is stated in the death certificate,
  3. the documents required to establish the hereditary succession, i.e. the will, birth certificate, marriage certificate etc.

If the decedent was a foreign (i.e. non Austrian) national on the day of death, and if agreements on mutual equal treatment exist between his/her country of origin and Austria, the probate proceedings will be conducted by the competent courts or other authorities of the decedent’s country of origin on the day of his/her death provided that the assets representing the estate are movable property only. In these cases, simplified court proceedings are available, known as the delivery procedure. (“Ausfolgungsverfahren”). More on this re-sealing procedure in this post.

Such delivery procedure only requires a decree issued by the competent foreign court regarding the beneficiary entitlement to the inheritance (i.e. names of the entitled persons or of the executor) to be submitted to the Austrian court together with the additional documents listed above.

If the beneficiaries or executors are resident outside Austria, it is usually necessary to entrust the probate or delivery proceedings to either an Austrian Notary Public or to a German speaking probate lawyer.

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The German-British probate expert Bernhard Schmeilzl specialises in international wills and estate planning for British-German and British-Austrian families since 2001. He knows the typical problems that arise when an English will lands on the desk of a German or Austrian probate registrar or vice versa. Most succession lawyers only know the rules and practical operations of their own jurisdiction. The probate experts at Graf & Partners, however, apply for hundreds of grants each year in England, Germany and Austria, acting either as probate lawyers for personal representatives or acting as executors themselves.

These combined 20+ years of practical experience in non-contentious as well as contentious probate matters in Germany, Austria and the UK make the lawyers of Graf & Partners sought-after lecturers and speakers.

German solicitor Schmeilzl regularly conducts legal seminars and practical workshops on international wills and estate planning as well as on how to obtain probate in Germany, Austria and England. Popular topics for such inhouse seminars for British and German law firms are:

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.

This is what a Swiss Grant of Probate really looks like

Sample Certificate of Inheritance issued by Switzerland Probate Court (Zurich)

We, the German-British law firm Graf & Partners, specialise in international probate matters as well as estate planning in all German speaking countries, i.e. Germany, Austria, Switzerland and Liechtenstein. Thus, we are often approached by clients who need to apply for a grant of probate in these countries. Also, we are sometimes approached by clients who fell for an online inheritance scam.

In order to give you an idea what an authentic Swiss Certificate of Inheritance (Erbschein Schweiz) looks like, we post this real life example of such an Erbschein issued by the Swiss District Court of Zurich:

For more information on probate as well as gift & inheritance tax in Germany, Austria and Switzerland 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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seminar_lyndalesIn case you need 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. He is an expert in international succesion law and gives lectures and seminars for UK probate solicitors and UK accountants who advise clients with foreign assets.

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The law firm Graf & Partners was established in 2003 and has many years of experience with British-German and US-German 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.

“See the Big Picture”: The Preparation of International Wills

One-Day Workshop for English Wills & Probate Solicitors

Clients these days often own foreign assets, have close relatives (i.e. future beneficiaries) who live abroad or even move to a non-UK country themselves. In all of these cases, a “standard” English last will and testament does not adequately cover all the client’s needs. Foreign IHT consequences, for example, are often completely ignored. As is the fact that many European jurisdictions do not recognise an English trust for probate and IHT purposes. British and US expats (and their lawyers) must be aware that standard Common Law estate planning techniques are likely to fail to protect wealth in cross-border situations and may even produce unintended, counter-productive results.

The simple advice “set up an additional will for your foreign assets” is rarely the best solution because the existence of various wills even increases the risk of conflicting interpretation by executors, probate judges and the respective national tax authorities. The existence of more than one will also creates higher costs and usually slows down probate significantly, because probate registrars usually request to see (and have translated) all existing wills, even those who do not directly apply to their country (because that is what they want to verify).

The German-British probate expert Bernhard Schmeilzl specialises in international wills and estate planning for British-German and British-Austrian families since 2001. He knows the typical problems that arise when an English will lands on the desk of a German or Austrian probate registrar or vice versa. Most succession lawyers only know the rules and practical operations of their own jurisdiction. The probate experts at Graf & Partners, however, apply for hundreds of grants each year in England, Germany and Austria, acting either as probate lawyers for personal representatives or acting as executors themselves.

These combined 20+ years of practical experience in non-contentious as well as contentious probate matters in Germany, Austria and the UK make the lawyers of Graf & Partners sought-after lecturers and speakers.

German solicitor Schmeilzl regularly conducts legal seminars and practical workshops on international wills and estate planning as well as on how to obtain probate in Germany, Austria and England. Popular topics for such inhouse seminars for British and German law firms are:

Preparing International Wills: A Checklist for Clients and their Lawyers

British Expats Beware of Foreign Succession Laws and Foreign IHT

International Wills: What your English Solicitor does not tell you (but should)

If a British Testator relocates to Europe…

The Perils of the “Free of Tax” Clause in English Wills

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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.

British Expats Beware of Foreign Succession Laws and Foreign IHT

Children of British Expats in Europe often are entitled to the Estate without even knowing it. EU Succession Laws are full of surprises.

British expats who are resident in Europe, let’s say in Germany, Austria, France or Spain, rarely are aware that ever since the introduction of the EU Succession Regulation (August 2015), if they pass away while being resident in that country, the Inheritance and Succession Laws of that country of residence will most likely apply to their estate. This is due to the fact that the entire European Union (except for the UK, Denmark and the Republic of Ireland) have adopted the EU Succession Regulation which states that the laws of the country in which the deceased had his or her last habitual residence must apply. Habitual residence is easier to achieve than domicile.

Thus, a British national who may consider him- or herself to be domiciled in England, can easily be considered by the German, Austrian, French or Spanish probate court to have established habitual residence outside the UK. Then, from a EU law perspective, these national succession rules (i.e. German, Austrian, French inheritance laws etc.) do apply to the entire estate, including the assets situate within the UK. English law takes a different view on this issue which may lead to horrendous legal disputes and contentious international probate cases which drag on for years and block the administration of the estate both in the UK and in Europe.

Who inherits if a British expat dies abroad?

German Intestacy Rules Overview Chart

The application of foreign succession laws can lead to surprising results. Pleasant or unpleasant, depending on the degree of kinship with the deceased. Under German succession laws, for example, the surviving spouse has a much weaker position compared to the intestacy rules in England and Wales as well as Scotland. Details are explained here and here.

The stunning results are not only caused by different national rules of intestacy. These could easily be avoided by simply creating a will. But even if the British expat has set up a valid will, the inheritance and succession laws of continental EU countries (including Germany, Austria and France) often apply statutory elective share rules, also known as forced heirship or compulsory inheritance share rules. For practical implications of such forced heirship rules see here and here.

By the way: National inheritance tax laws of the respective country of residence do also apply. This cas always been the case and has nothing to do with the EU Succession Regulation and will also not be affected by Brexit. National tax laws are what they are. Still, British expats should inform themselves about the respective IHT laws of their country of residence. Unless they live in Austria because Austria does not levy any inheritance tax (as of now).

In order to avoid unpleasant surprises or probate problems, expats should definitely have their last will checked by an international succession law expert within the country of residence. English solicitors are rarely capable or even willing to consider foreign law implications (for some examples how English wills can lead to catastrophic results outside the UK see here).

If you wish to instruct Graf & Partners LLP to draft a Will or to team up with a foreign lawyer to advise in specific areas of German or Austrian law, please feel free to complete the questionnaire and contact our German succession and probate law experts. Lawyers can create a tailor-made Last Will only if they are fully informed about the testator’s personal situation and his/her objectives. In order to draw up a Last Will that fully meets the clients individual requirements, Graf Partner LLP uses a comprehensive questionnaire and Will preparation checklist (available for download here).  This checklist also helps to facilitate an effective and individual preparation for the personal meeting at the firm.

German solicitor Bernhard Schmeilzl also conducts inhouse seminars for British and American lawyers and accountants who advise clients with foreign assets or who have family abroad. More on these seminars here: Advising Clients with Assets Abroad

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.

Workshop “Clients with Foreign Assets” for British Inheritance & Probate Lawyers

Why would an English or Scottish solicitor even give a toss about German or Spanish inheritance tax laws or about French or Italian forced heirship rules? Well, for starters, in order to avoid the client’s survivors yelling at him/her some years later because they ran into probate or/and foreign tax problems abroad.

Or, and this is of course the far better reason, to really impress your client with advice on international aspects of estate planning the client would otherwise never have thought of. Are you a solicitor or accountant who advises British clients with assets abroad or relatives living outside the UK? Then you might want to check whether you were already aware of some of the tripwires described in this post on international estate planning and will preparation.

Estate Planning for International Families requires seeing the big Picture

A solicitor who knows the basic principles of other jurisdiction’s succession rules and inheritance tax concepts is much more valuable to his client because such a solicitor can avoid structuring English Wills which may have counterproductive consequences in other countries.

The standard advice given by many English solicitors is still: “If you own assets abroad make a separate Will in each of those countries”. Well, this is simply not enough because such wills need to be synchronised both from a practical probate perspective and in regards to the overall inheritance tax consequences. Also, sometimes the better choice is to deal with the foreign assets directly in the English will.

Since 2003, the succession and tax lawyers of Graf & Partner specialise in international estate planning and will preparation with a strong focus on British-German, American-German, British-Austrian and American-Austrian inheritance cases and probate applications. German lawyer Bernhard Schmeilzl regularly gives presentations and conducts inhouse seminars for British and American lawyers and accountants who advise clients who possess foreign assets or who have relatives abroad who shall inherit or receive gifts or legacies. More on these seminars here: Advising Clients with Assets Abroad

The goal of our seminars on international inheritance and tax law is not to make the English solicitor a Jack of all trades or to expose the solicitor to liability risks. Instead, the goal is to give the solicitor a basic idea about where the English estate planning approach might cause problems elsewhere and then team up with the respective experts from those countries to find the best overall solution for the client and his family.

To give you an impression of the case studies we discuss in our workshops here are a few slides taken from our 90 page power point presentation: Presentation Wills and Estate Planning for International Clients

For more information on German-British or Austrian-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.