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:
- Most Germans die without a Will (German Intestacy Rules)
- Formal Requirements to set up a valid Will in England, Scotland and Germany: What are the Differences?
- The Perils of German IHT and Gift Tax
- Careful with Deed of Variation if Estate comprises Foreign Assets
- Basics of German Inheritance and Succession Law
- Executors and Trustees in German Inheritance Law
- How to apply for a German Grant of Probate
- The Infamous German Community of Heirs – And how to avoid it
- Germans Heirs are Personally Liable for Debts of the Deceased
- International Wills and Estate Planning for British-German Families
- Prove German Wills for English Probate
- Disputed Wills and Contentious Probate in Germany
- Disinherit your no-good children? Not so easy in Germany
- Don’t be afraid of Clients with Foreign Assets!
- Can foreign Taxes be set off against UK Inheritance Tax?
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.