Recognition of a Will executed under the laws of California in Germany

Recognition of a Will executed under the laws of California in Germany

As lawyers specializing in German-American probate matters, we routinely presented with a fact pattern that requires us to analyze whether a California Will can be recognized in Germany. This article examines whether a California Will can be recognized in Germany.

Recognition as Regards to Form

Formalities of Executing a Will in California

Pursuant to CPC § 6110, a will must be in writing and signed by or on behalf of the testator. If the will is signed by someone other than the testator, it must be signed in the testator’s presence and at the testator’s direction.

Alternatively, the Will can be signed by a conservator upon issuance of a court order as described in CPC § 2580.

Under CPC § 6111(a), a Will that does not comply with CPC § 6110 is valid as a holographic will, whether or not witnessed, if the signature and the material provisions are in the handwriting of the testator.

If the will is typed and/or not in the Testator’s handwriting, the Will must be witnessed, during the Testator's lifetime,

  • by at least two persons each of whom being present at the same time,
  • witnessed either the signing of the will or the testator's acknowledgment of the signature or of the will and
  • understand that the instrument they sign is the testator's will.

Validity of a Will as Regard to Form under German Law

Pursuant to § 2231 BGB, the testator can choose between two forms of regular wills

Pursuant to § 2247 BGB, a valid holographic will requires that the will (Testament) be handwritten and that the signature of the testator be made personally by the testator and that such signature follows the end of the text.

A notarial will, also referred to as public will (öffentliches Testament), is made by the testator declaring his last will to a German Notary (Notar) or handing the Notary a document with the statement that the document contains his last will. The testator may hand over the document either unsealed or sealed; it is not required to be written by him. See § 2232 BGB.

Recognition of a California Will in Germany as Regard to Form

As most wills in California are typed and include two witnesses, California wills often do not comply with the formalities of either § 2247 BGB or § 2233 BGB.

However, as Germany has ratified the Hague Convention on the Form of Testamentary Dispositions, a California law is recognized in Germany as valid as regard to form, if its form complies with the internal law:

  • of a nationality possessed by the deceased, either at the time when he made the disposition, or at the time of his death, or
  • of the place where the deceased made it, or
  • of a place in which the deceased had his domicile or habitual residence either at the time when he made the disposition, or at the time of his death, or
  • so far as immovables are concerned, of the place where they are situated or
  • of the applicable law with respect to the succession or the law that would have been applicable at the time of the testamentary disposition.

Please note: As German courts  characterize many trusts as wills, the trust document should, as a matter of precaution, comply with with the formalities described in CPC § 6110.  

Substantive Validity of a Californian Will

From a German perspective, the substantive validity of a Will (e.g. capacity to make a Will, interpretation) made under the laws of California is governed by the law which, under the European Succession Regulation (Europäische Erbrechtsverordnung), would have been applicable to the succession of the person who made the disposition if he had died on the day on which the disposition was made. See Art. 24 of the European Succession Regulation.

If there is a valid choice of law under Art. 22 of the European Succession Regulation or deemed choice of law under Art. 83 para 4 of the European Succession Regulation, the chosen law governs substantive validity of the Will.

Please note: If the will was made without contemplation of German law and the applicable law is German law, the German probate court (Nachlassgericht) may have to interpret the Will and, in some cases, it may not be recognized as being fully effective and may only result in partial recognition. This may delay the probate process in Germany.

Requirement of a German Certificate of Executorship and/or Certificate of Inheritance

There is no specific law that requires that a German certificate of inheritance (Erbschein) or German certificate of executorship (Testamentsvollstreckerzeugnis) be obtained and/or presented to administer an estate in Germany. Pragmatically, heirs or executors will need to obtain a German certificate of inheritance or executorship (or both) to access and marshal assets in Germany. For information how to obtain a German certificate of inheritance, please check our article German Certificate of Inheritance

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