Bernhard Schmeilzl is the co-founder of Graf & Partners LLP. Here, Bernhard explains the process of obtaining probate and administering an estate in Germany.
If an inheritance includes German assets or if the last will names a person resident in Germany, it is important to understand the different requirements and effects of UK and German inheritance law and probate proceedings.
Checklist for the administration of a German estate:
1. Apply for the death certificate (international version) with the local German persons register (Standesamt), ideally several original copies.
2. Notify the authorities, the tax office, employers and/or pensions about the bereavement.
3. Notify banks, insurers etc. about the bereavement.
NOTE: Germany has extremely strict confidentiality and data protection laws. Not even land registry information is freely available (details here). Therefore, banks and insurers will not disclose any information until you can present the German grant.
However, German law permits the instrument of “transmortal powers of attorney” (Vollmacht über den Tod hinaus); this permits the authorised person (Bevollmächtigter) to obtain information, access bank accounts etc. even before a German grant is issued. When drafting a will for someone resident in Germany or owning assets there, it may be extremely helpful to discuss the issue of transmortal powers of attorney.
4. Check and secure German property (if the property stands empty for a longer period, consider changing locks and installing a burglar alarm system).
5. Collect and assess relevant documents from the apartment/house of the deceased, from their accountant etc. Check whether the deceased has left a will. If they left a will in notarial form (notarielles Testament), it is officially registered in the court system already and will automatically be “openend” (eröffnet) by the German probate court (Nachlassgericht) where the deceased had his/her last German residence. If it is a handwritten (holographic) will, the original will must be delivered to the local probate court without undue delay.
6. Prepare an initial estate inventory (Nachlassverzeichnis) which needs to be disclosed to the German probate court if someone applies for probate.
NOTE: If there is a risk that the estate is overindebted (überschuldet), the inheritors must actively renounce the inheritance to avoid the danger of being personally liable for the debts of the deceased. Details are explained here. Due to this principle of full liability of the heirs (unless they renounce or apply for estate curatorship), there is no need for a Deceased Estate Notice under German law.
7. Decide whether a German grant is necessary. This is usually the case if there are assets in Germany and the deceased did NOT make a last will in notarial form.
8. If a German grant is required, decide whether the applicant is able to travel to Germany for the oath or whether the applicant wishes to swear the oath at a German general consulate abroad.
9. Depending on the decisions regarding issues 7 & 8 above, decide which German probate lawyer to instruct with drafting the probate application (which is not a form but an individually worded open document). Said lawyer will assist you to collect all the necessary information and documents which are required for the application. Details re the German probate application process are explained here.
10. Make an appointment either with the German probate court, a German notary or a German general consulate abroad to swear the oath.
11. Once you have obtained the German grant (Erbschein or Testamentsvollstreckerzeugnis), contact all banks, insurers, financial institutions, creditors etc. in order to obtain information on the balances on date of death (if you did not already know them from account statements in the apartment of the deceased). Instruct all banks and financial institutions to release the funds.
NOTE: While the German grant will be issued independently from the German IHT returns, in practice the banks will still not release the monies until the German tax authorities (Finantamt) has issued a tax clearance (Unbedenklichkeitsbescheinigung).
12. Finalise and submit the German inheritance tax return (Erbschaftsteuererklärung) and prepare to pay the German IHT within 2-3 months. Ask the tax office to issue a tax clearance certificate (see above).
NOTE: If there is also UK IHT to be paid, you may be able to apply for unilateral relief. Details are explained here.
13. Pay any debts. Terminate contracts no longer required.
14. If there are any properties in the German estate, apply for an update of the German land registry (Grundbuch).
15. If you wish to sell German property, decide if and which realtor/estate agent (Immobilienmakler) you wish to instruct. The sale of a German property must always be effected by a German civil law notary. More on conveyancing in Germany here.
16 . If you are an executor/administrator (Testamentsvollstrecker), prepare the final estate accounts and distribute the estate to the beneficiaries. If you are an Erbe (heir or co-heir), it is recommendable to draft a document to be signed by all co-heirs confirming that the German estate has been dissolved (aufgelöst or auseinandergesetzt).
NOTE: If there are also assets outside of Germany, there is the need for additional grants in those other jurisdictions. Unless the deceased had his habitual residence (gewöhnlicher Aufenthalt) in Germany and the other countries involved are EU member states which have accepted the EU Succession Regulation. In that case, an EU certificate of Succession is necessary and sufficient to deal with all estates in those countries.
The basics of German succession laws and intestacy rules as well as German inheritance tax are explained in the brochure “German Probate”, which is available for download here. We have also put together the “11 Pitfalls of UK-German Estate Planning“, in which we highlight 11 common issues when drafting a will or applying for probate when the estate in question involves both UK and German considerations.
Bernhard Schmeilzl is the co-founder of Graf & Partners LLP, a boutique German law firm with offices both in Munich and Regensburg, as well as a network of partner offices in the United Kingdom and the USA. Graf & Partners advise on German-British legal issues, specialising in inheritance and probate cases as well as international commercial litigation and cross border tax.
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