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

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.

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.

If your Parent or Child passes away while having been resident in Germany…

… then German Succession Rules do apply to the Estate!

Since August 2015, all EU members (except for UK, Ireland and Denmark) apply the same basic rule: The national succession laws of that country shall apply in which the decedent had his or her last habitual residence (EU Succession Regulation, EU 650/2012).

Thus, if your parent or your child has been permanently living in – for instance – Germany, France or Spain and sadly dies while having been resident there, then the national succession rules of Germany, France or Spain will govern the administration of the entire estate as well as the formal probate proceedings.

This can create some surprising results for everyone involved. Intestacy rules, for example, vary from country to country. And, even more astonishing for English relatives and their lawyers, many European countries know a concept of “forced inheritance” or “statutory share rules”.

Under French law, a fixed proportion of the estate (of at least one half) is inherited by the child or children of the deceased, irrespective of the testator’s wishes as expressed in his or her will (“forced inheritance”). In Germany, the situation is similar: the surviving spouse, children and even the parents of the deceased are entitled to make a significant financial claim against the heir(s), the so called Pflichtteilsanspruch (details here).

Not every British or Irish national who lives in Germany (or France etc) is aware of this. And even if they are aware, then some of these national succession laws are mandatory and indispensable. Thus the term “forced inheritance”. For the surviving spouses, children or parents of a British or Irish national who passed away in Europe, this means that they may be entitled to an interest in the estate even if they were disinherited. In other words: German or French succession laws grant the close relatives certain rights they would not expect to have under English laws.

There are, however, also unpleasant surprises and risks: Under German as well as French laws, for instance, the heirs inherit their share of the property of the deceased directly on death and also assume personal responsibility for the debts of the deceased (even if they are at first unaware of such debts) and the tax on inheritance.

In all international inheritance cases, the relatives of the deceased should thus obtain information on the local succession laws and probate rules to avoid risks of personal liability and to find out whether they are entitled to a forced inheritance.

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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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.

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.

How to deposit a Will in Germany

If you live in Germany or have significant assets there you should consider making a separate last will with regard to those German assets. If you do so, the question arises where to store the will. In case you opted for a so called public will (i.e. a will recorded before a German notary), an official copy of your German will is automatically sent to the central registry. So there is no risk of the will being misplaced or destroyed.

If, however, you opt for a holographic (i.e. handwritten) will or if you wish to include your German assets in your English will, you can — and probably should — deposit said will with the German Probate Registry (Nachlassgericht) at the German town where you live. This not only protects your will against any fould play but also speeds up German probate proceedings later on. Of course, you can at any time withdraw your will from safekeeping in case you change your mind about the content of the will.

How much does it cost to deposit a will or codicil?

There is a one-off charge to deposit a will or codicil which depends on the value of your estate. Usually between EUR 80 and EUR 200. So be prepared for the court official to ask you about the value of your German estate (a rough estimate is sufficient).

In order to avoid unpleasant surprises or probate problems, British expats living in Germany should definitely have their last will checked by an international succession law expert. English solicitors are rarely 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.

 

This is what a German Gift Tax & Inheritance Tax Bill really looks like

Understanding a German Inheritance Tax Statement

Inheritance tax in Germany is calculated very differently from the IHT in the United Kingdom. First of all, under German law, not the estate as such is being taxed but each individual beneficiary. Secondly, each beneficiary has an individual tax rate and an individual tax allowance, based on the amount received and the degree of kinship. And, last not least, German law applies the concept of gift tax which means that pre-death lifetime gifts are relevant for the caluclation of German IHT.

Sample German IHT Assessment Notice

Here is a practical real life example of a German Inheritance Tax Statement in a case where the decedent has made lifetime gifts to the beneficiary and – in addition to the pre-death gifts – has gifted half of the estate to the same donee.

 

 

 

 

 

 

 

 

In order to understand a German tax calculation one must know the terminology of the German Gift Tax and Inheritance Tax Code (Schenkungs- und Erbschaftsteuergesetz). The most important terms in the tax bill are:

  • Erbschaftssteuer = Inheritance Tax
  • Schenkungsteuer = Gift Tax
  • Sonstige Erwerbe = Other Gifts (meaning any kind of gift except for the inheritance itself, mostly pre-death gifts or life insurance payments outside of the estate)
  • Vorerwerbe = pre-death gifts and pre-death payments outside of the estate
  • Steuerklasse = German IHT category (based on degree of kinship)
  • Steuersatz = tax rate
  • Freibetrag = personal allowance of the donee (this allowance also depends on the degree of kinship and ranges from only EUR 20,000 between unrelated persons to EUR 500,000 between spouses)

As mentioned above, a major difference between German and UK inheritance tax is that under German law all lifetime gifts do in principle trigger gift tax. Immediately when the gift is made, i.e. not only if the gift was made during the periof of 7 years prior to the date of death of the donor.

All such lifetime gifts (lebzeitige Schenkungen) and any inheritance are added together (if they happen within a period of ten years) and are then the basis on which the combined gift and inheritance tax is being calculated (see the above sample German IHT Tax Bill).

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For more information on German gift & inheritance taxation, on German-British probate matters and on 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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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.

– – – –

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.

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

English lawyers and tax consultant: beware of personal liability when designing Wills for families who either may own assets abroad or who wish to make gifts to beneficiaries living outside the UK.

The harmless seeming “free of tax” wording as is commonly used by English solicitors when drafting wills for English clients can lead to unexpected quarrels between executors and beneficiaries. Why?

If a UK estate exceeds the UK IHT nil-rate band of currently £325k, HMRC levies 40% inheritance tax. From the perspective of most European countries, this is a staggeringly high tax rate. Austria, for example, knows no IHT at all. In Germany, the inheritance tax rate between close relatives starts at 7%.

Another major difference between the IHT systems of the UK and most continental EU countries is that outside the UK not the estate as such is being taxed but instead each individual beneficiary, sometimes at very different tax rates which depend on the relation to the deceased. Thus, if a beneficiary who receives a gift under an English will lives in such a country (e.g. Germany, France or Spain), that beneficiary will be subject to (additional) inheritance taxation within the country of his / her residence.

And here is where it is getting risky for English solicitors

When drafting an English will, most British solicitors will usually write:

“XY shall receive free of charge the following assets…”

From a British point of view, this means that the gift is not to be reduced by IHT. Instead, from a strictly financial perspective, the portion of UK IHT attributable to that gift shall be borne by the estate, i.e. by those beneficiaries who shall receive the residuary estate. HMRC is not concerned with who shall effectively bear the burden of IHT. From a UK perspective: So far, so good.

However, as we have seen above, if the beneficiary of a specific gift resides and lives in, for instance, Germany (and is therefore deemed to be a tax resident in Germany within the meaning of § 2 ErbStG), then that beneficiary must also pay the German IHT on the value of the gift. This is regardless of any sort of British inheritance taxes, since there is no double taxation agreement between the UK and Germany in the field if inheritance tax.

To illustrate, here is a simple case study in a British-German setting (but the problem also arises in British-French, British-Spanish etc inheritance cases):

An uncle, who is English and lives in London, in his last will gives a gift of €100,000 to his nephew who – at the date of the uncles’s death – is resident in Germany. The solicitor drafting the will includes the wording “free of any tax”. This scenario creates two legal problems:

Problem 1: The nephew (or his German lawyer) will argue that the wording “free of any tax” also applies to German inheritance tax. Under German law, the nephew only has a personal IHT allowance of €20,000, which means that the remaining amount (€80,000) is subject to German IHT. In this case (a nephew receiving €100,000), the tax rate is 20%. If the amount or the relation is different, there can be very different tax rate (detaiils of German IHT rates are explained here).

The nephew will write to the executor and request that he pay the German inheritance tax bill of €16,000. The Executor will swiftly inform the nephew that neither the deceased nor the solicitor who set up the will did have German inheritance tax in mind when drafting the will. One can already see the wonderful dispute arising because of the term “free of any tax”. If the deceased was someone who was fully aware of the fact that one has to pay personal inheritance tax in Germany as recipient of a gift, then the nephew can reasonably argue that his uncle had indeed meant “free of inheritance tax” under both regimes. If the deceased hat, on the other hand, never lived in Germany and had never heard of that German tax concept, then it is the more convincing interpretation of the will that the words “free of tax” really only mean “free of UK IHT”.

Problem 2: Although there is no double taxation agreement between the UK and Germany with regard to inheritance tax, German tax law still offers unilateral relief in certain circumstances. In our example case study, the nephew would be able to set off the respective UK IHT against his tax debt, if his gift would have been reduced by UK IHT. However, if the “free of any tax” clause is interpreted as meaning that the estate has to pay also the German IHT, then the nephew personally bears no UK IHT burden. Within the logic of German IHT, the German beneficiary can thus also NOT claim unilateral relief, i.e. he cannot be given any tax credit in Germany!

The result being that the executor has to pay both UK IHT and foreign IHT on the same gift without being able to claim any foreign tax relief. A very unsatisfactory outcome, especially for the beneficiaries receiving the residuary estate.

This simple case study shows that an English solicitor, by designing a will without the adequate knowledge of the German (French, Spanish etc) tax system can cause considerable tax harm and create great legal quarrels between the various beneficiaries.

Lawyers in different countries must therefore work together in assessing the potential tax consequences in each individual country in order to avoid any pitfalls and nasty surprises.

A possible solution with regard to Germany might be the following wording:

My nephew shall receive a gift of …. With regard to any inheritance tax that may arise in the UK, my nephew shall receive this “free of tax” i.e. the inheritance tax incurred in the UK is not to be paid out of the value of the share deposit, but from other assets. In addition, my nephew shall also receive, as further gift, a sum of money equivalent to that required for any settlement of the IHT in the UK. With regard to taxation, my nephew shall therefore bear the IHT which is attributable to the gift and shall therefore be entitled to deduct the UK IHT by way of deduction from German inheritance tax (§ 21 ErbStG).

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.

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.

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.

If a British Testator relocates to Europe…

… the surviving spouse may be in for an unpleasant surprise

Since 2015, according to the rules of the EU Succession Regulation, the criterion “last habitual residence” of the deceased determines which succession laws apply to the estate. If, for instance, a British national moves to Spain, Germany or France and later on dies there, then the respective national succession laws, i.e. Spanish, German or French succession laws, do apply (except with regard to UK immoveables).

This can cause surprising results, especially if the British expat or retiree did not have a will, because German, French, Spanisch or Austrian intestacy rules vary significantly from those in England & Wales, Scotland or Ireland.

Under German intestacy rules, for example, the surviving spouse only inherits 1/2 of the estate if the deceased had children. And it’s even worse if the deceased did not have any children but his parents or siblings are still alive. In this instance, the surviving (British) spouse is not the sole beneficiary, but instead only inherits 3/4 of the estate. The remaining 1/4 share goes to the parents or (if they are no longer alive) to the siblings of the deceased spouse. This usually comes as quite a shock to the surviving spouse. For details on German intestacy rules see here.

Beware of the “Elective Share” Risk

These foreign rules of intestacy can, of course, be avoided by simply making a last will and testament (an English will is accepted as valid throughout Europe, see here). However, even then there can still be serious implications resulting from the foreign succession rules, which often neither the testator nor his/her spouse nor their English solicitor who drafted the English will are aware of.

The often overlooked problem is that the inheritance laws of Germany, France and many other European countries apply the concept of a statutory compulsory share (mandatory elective share), which means that certain close relatives (usually spouses, offspring and parents) are entitled to a certain share of the estate no matter what, i.e. even if they have been expressly disowned in a will. The concept goes back to the Napoleonic Code (French Civil Code) which contains compulsory inheritance provisions for certain relatives. In particular, children are “protected heirs” and cannot be disinherited. German civil law and the succession laws of many other countries have adopted this concept.

Thus, the (British) children or grandchildren of a British citizen who has permanently moved to Germany or France may be entitled to a huge portion of the estate (up to 50 percent of the entire estate!), even if the last will does not mention them as beneficiaries or only gives them a smaller portion of the estate.

In many cases, these (disinherited) relatives are not aware of their right to make such a claim. However, if they speak to a probate lawyer in that country or if they stumble across this post, they may approach the surviving spouse of the expat / retiree and demand their share.

Thus, if a British national plans to work or retire in another European country, he or she should (i) make a will in order to avoid foreign intestacy succession rules applying and (ii) have that will checked by a succession and probate lawyer who is well versed in international inheritance laws to avoid unpleasant surprises for the beneficiaries later on.

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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.

Bernhard Schmeilzl is an expert in international will preparation, estate planning and cross border probate. He 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.