German-American Probate and Inheritance Law - FAQ

As lawyers specializing in German-American probate law, we frequently assist and represent U.S. clients with settling estates in Germany. The article answers the most frequently asked questions with respect to the administration and settling of estates in Germany.

When does German inheritance law apply?

For all individuals dying after August 16th, 2015 German courts shall apply the European Succession Regulation (Europäische Erbrechtsverordnung). Pursuant to the regulation, German courts will apply the law of the country in which the deceased died and was deemed a habitual resident.

Are there any exceptions from this rule?

Exceptions exist if the deceased was manifestly more closely connected with another country, had chosen the application of the law of his or her nationality and/or if the decedent`s last habitual residence was in the U.S., however, U.S. law refers back to German law (renvoi). 

Does the European Succession Regulation also govern the applicable tax laws?

No. The Germany-U.S. Estate and Gift Tax Treaty determines whether Germany or the U.S. (or both) may tax the inheritance.

Does German inheritance law apply to the estate of a U.S. citizen?

If the a U.S. citizen`s last habitual residence (gewöhnlicher Aufenthalt) was in Germany and he/she had not chosen “U.S. law”. German law governs succession of his worldwide estate.

How does German inheritance law work?

Under German inheritance law a decedent's assets and debts pass directly to the heir (Erbe) at the time of death. 

How is a will executed under German inheritance law?

Pursuant to § 2231 BGB, the testator can choose between the notarial will (Notarielles Testament) and  the holographic will (eigenhändiges Testament).

Does Germany recognize U.S. Wills?

Germany has ratified the Hague Convention on the Form of Testamentary Dispositions. Thus, in most cases, there are no issues with respect to the formal validity of a U.S. Will.

How is a Will revoked under German inheritance law?

A will or part of a will (Testament) is revoked by a will, destruction (e.g. burning, tearing) by the testator or by the withdrawal of the Will from court custody.

Is a joint will permissible under German inheritance law? 

Spouses or registered same-sex partner (eingetragener Lebenspartner) can make a joint will (gemeinschaftliches Testament). A joint will is generally made as a single document. A valid joint will must be signed by both spouses. However, only one spouse will generally write it (by his own hand). Many joint wills contain mutual dispositions upon death. The same rules apply to joint wills of same-sex partners.

Can a joint and mutual will be revoked by the survivor after the death of the first dying spouse?

After the death of one spouse, a mutual testamentary disposition (wechselbezügliche Verfügung) of the other spouse cannot, in principle, be revoked and is binding. However, if the surviving spouse renounces the inheritance, he is free to change his will. 

Does German law provide for a forced share for children of the deceased?

Yes, German law provides for a forced share (Pflichtteil) for children of the deceased.  

Is there an elective share for the surviving spouse?

No. However, the surviving spouse is also entitled to the forced share (Pflichtteil) and may also have an enforcable claim with regard to the marital property. 

How is the German forced share determined?

The German forced share amounts to half of the value of the intestate share. For additional information please see the article Forced Heirship under German Law

What rights does the surviving spouse have in Germany if no will exists?

In the case of intestate succession (gesetzliche Erbfolge), the surviving spouse is entitled to 25% of the estate if there is surviving issue of the decedent. If the decedent is survived by his/her parents or their issue (i.e. sisters/brothers or nieces/nephews of the decedent) or grandparents, the surviving spouse receives 50 %. In all other cases, the spouse receives the total estate. The spouse may receive an additional 25% share of the estate if there was no ante-nuptial contract between the spouses. For further information, please see the article Intestate Succession in Germany

What are the rights of the children of the deceased or other next of kin if there is no will? 

If the testator did not make a will, the children receive a share of the estate under German intestacy rules. For further information, please see the article Intestate Succession in Germany

Can you inherit debt in Germany?

Under German law, an heir (Erbe) inherits both assets and debts of the decedent. However, an heir can avoid personal liability for the debts by disclaiming the inheritance or by applying for estate insolvency.

Who is called to administer the Estate in Germany?

Upon the testator’s death the heir (Erbe) becomes the owner of the deceased's estate (Nachlass). Unless the testator named an executor (Testamentsvollstrecker), the heir administers the estate and there is no personal representative.

Who administers the Estate if there is more than one heir? 

If there is more than one heir, the estate becomes the joint property of the community of co-heirs (Erbengemeinschaft) and the heirs jointly administer the estate. In principle, any act of administration requires a unanimous decision of the other beneficiary. However, exceptions may apply.

How does the probate process in Germany work?

Pragmatically, heirs or executors will need to obtain a German certificate of inheritance (Erbschein) or German certificate of executorship (Testamentsvollstreckerzeugnis - or both -  to access and marshal assets in Germany.  

What is a German certificate of inheritance?

The German certificate of inheritance (Erbschein) is a document issued by a German probate court (Nachlassgericht), that states the identity of the heir and his respective share in the estate as well as any limitations to the heir's power of disposition over the estate, which may result from the ties on preliminary heir (Vorerbe) and subsequent heirship (Nacherbe) or from the appointment of a German executor (Testamentsvollstrecker). A German certificate of inheritance is often required to prove the heir's right of inheritance, especially when immovable property is part of the estate.

What is a German certificate of executorship?

The German Certificate of Executorship (Testamentsvollstreckerzeugnis) states the identity of the German executor (Testamentsvollstrecker) and any limitations to his (statutory) powers.  

Do German courts recognize a U.S. personal representative?

A U.S. personal representative will only be recognized in Germany if he qualifies as German executor (Testamentsvollstrecker) and, consequently, is entitled to receive a German certificate of executorship (Testamentsvollstreckerzeugnis). This is the case, if it can be established that it was the testator`s intention that he should settle the German estate and he was not simply named as executor because a personal representative is required under U.S. laws.

Does the German probate court supervize the administration of the estate by the German executor?

In contrast to probate proceedings in the U.S., the German executor is not required to report to the German probate court (Nachlassgericht) and the probate court has, generally, no right to supervise the administration of the executor or give him instructions. However, the probate court may grant relief upon petition by an interested person, e.g. dismiss an executor or determine the heirs. 

How does an individual determine if they are a beneficiary under a Will in Germany?

Anyone who is in possession or control of a will is required to submit it to the Court at the place of the last habitual residence of the decedent. The Probate Court (Nachlassgericht) will send a court certified copy of the Will to all interested persons, which includes all beneficiaries under the Will and intestate heirs. This proceeding is referred to as opening of the Will (Testamentseröffnung). If you are not contacted by the court, you should consider to contact it.

Are trusts recognized in Germany?

German law does not allow for the transfer of assets located in Germany to a trust. However, a disposition in a trust pertaining to German assets is not necessarily without effect. For example, a testamentary trust may be interpreted as a German legal instrument which has similar effects. For example, it may be interpreted as durable execution of the estate (Dauertestamentsvollstreckung)subsequent heirship (Vor- und Nacherbschaft), life estate / usufruct (Nießbrauch) or a combination thereof.

Does Germany have an estate tax?

Germany does not levy an estate tax (Nachlasssteuer) as the estate is not recognized as an independent entity as in the U.S.

Does Germany have an inheritance tax?

Yes, Germany has an inheritance tax (Erbschaftsteuer). For more information, please read our article German inheritance tax

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