German Inheritance Law
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German Inheritance Law - if you have inherited in Germany, we are there to assist and support you in English.
www.donat-ebert.com German Inheritance Law - we support you in English, if you have inherited in Germany.
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"I give unto my wife my second best bed with the furniture" - or the importance of compulsory share in German Inheritance Law Whether William Shakespeare held a grudge against his wife or rather wanted to express his affection to her by this clause (as it seems some historians think they have found out today), I cannot decide. But I want to take this passage of Shakespeare´s last will to illustrate what a "compulsory share" means in German Inheritance Law today. The rules that close relatives (defined by § 2303 of the German Civil Code as descendants, spouses and parents) are entitled to a "compulsory share" considerably limit the freedom of the testator to dispose over his/her property. According to German law such close relatives cannot be totally excluded from getting a part, a "share" of the estate. If the testator excluded them by his/her last will, they still have the right to claim the "compulsory share" - which is half of what they would have got in the case of intestacy. In practice of German Law, the surviving spouse usually gets half of the value of the estate, depending on the matrimonial property regime the spouses lived their marriage in. Details are complicated and you find more information hereto on my website www.german-inheritance-law.com. But according to today´s German Law Shakespeare´s wife would have received more than just the second-best bed. If you need advice for a concrete case, you can contact me under: germanlawyer@email.de
German Inheritance Law - Dr. Donat Ebert
Getting information about the content and extent of the estate can be a big problem in Germany. This is particularly true, if those entitled are far away, do not speak the language, do not know the law and cannot really travel to Germany to get information. And this is exactly what many of my countrymen and -women take advantage of - they keep those abroad at arm´s length away from the essential insight as to what belongs to the estate. A recent judgement from Higher Regional Court in Hamm can help here. They stated: Access to the inheritance case file has to be fully granted, also to those who are entitled to compulsory share or to legatees, OLG Hamm, sentence from 26.08.2016, 15 W 73/16. So if you are heir, legatee or you are entitled to a compulsory share of the estate, you have the possibility to get some more information from the Court by asking for the case-file. And the case-file might contain a list of the estate (particularly if the heirs asked for a certificate of inheritance). This can be either a good starting-point to get information or a basis to check whether the information you got "from Germany" is true. You should trust a competent lawyer to get the case-file for you and then get advice as to how to proceed. http://german-inheritance-law.com/
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German Inheritance Law: No hierarchy between different testaments German Inheritance Law knows different kinds of testaments: the hand written private one and the one prepared in front a public notary. Between the two there is no hierarchy in the sense that the one os of more value than the other. Both are equal in rank. The only rule existing is that a testament written later overrules of the earlier. This means in practice that for example a "notarial" written in 2012 can be overruled by a "private" testament written in 2014. What can be a tricky question is whether the "younger" one it was meant to completely set out of effect the older one. But this is a question of interpretation as to the content. not of rank between the testaments.
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German Inheritance Law: No real probate procedure by the courts in Germany Many jurisdictions in Europe and across the world know a "probate procedure", which involves real activity by a State Institution, after a person died and left an estate within their competence area. This might be a court or also a public notary. Surprisingly enough Germany does not have such "probate procedure", at least not "ex officio", in other words: which starts automatically. German law foresees that the probate court opens the last will, if there is any, and then informs the parties involved about their role - as potential heir. Then the parties have a deadline to accept or decline the inheritance. Afterwards the court is only involved, if parties request their involvement, mostly to issue a certificate of inheritance. Apart from that the probate courts have no real further role. Of course, if there is controversy about who inherited what, who has to pay whom and so on, the courts are competent to solve these legal issues. But those courts are the "ordinary" ones, competent to decide civil cases. In practice, for example the enormously important question, what belongs to the estate (because heirs closer to it do not give other heirs - living abroad - information about the estate) has to be clarified by the initiative of the heirs in disadvantage. The consequence of this is that heirs - particularly from abroad - need the help of competent and committed lawyers to get what is theirs.
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German inheritance law: What kinds of last will does German inheritance law know? German law knows two kinds of last will or testamentary disposition. The safest way to make a testamentary disposition for what should happen with the estate after the death of the testator is a public will, also called a "notarial will" ("notarielles Testament"). The public notary will know how to design and elaborate a valid "last will". The other way is a handwritten testament. We will enlarge upon the formal requirements of a handwritten testament in a detailed way in articles you may find on this website. What can be remarked already here is that the testament you see on the picture above would be an invalid one. Be careful with that.
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German inheritance law: which institution is in charge of the probate procedure in Germany? The authority in charge of cases of succession in Germany is the local court The authority for successions lies with the local courts ("Amtsgericht") in the district where the testator had his residence or usual place to stay. Within the local court it is the probate court ("Nachlassgericht"), a special division of each local court. This is independent of the value of the estate. The estate court is the only competent institution that can issue a certificate of inheritance or succession. It is also the probate court that will open the will after the death of the testator.
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German inheritance law: Do we need witnesses for a handwritten testament in German law of succession? In contrast to other jurisdictions, German law of succession does not require any witnesses for the signature of the last will. For the German law-maker it obviously suffices that the handwritten will has to be written by the testator´s hand from the beginning to the end to prove that the testator is really the author of the will. The authenticity of the will might then be proven with the help of a graphologist. Witnesses are not required. On the contrary the presence of other people might give cause to the suspicion that the will was not written free of any form of undue influence or duress.
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German inheritance law: Does a handwritten will have to contain place and date in German law of succession? A handwritten will should give mention to place and date of its signature. But this is not mandatory. It is expedient though, because the testator might later revoke his earlier will - which he can anytime, provided he/she is the only author of the testament - and then after his/her death it might be difficult to tell which is the later and thus the valid one. Since it is easy to save the trouble of proof to the heirs, it is therefore highly advisable to put date and place on the will, though the law does not make it a strict formal requirement.
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German inheritance law: What does the requirement handwritten will mean in German law of succession? Handwritten will - a valid one - needs to be written by hand from the first letter up to the very last, including of course the signature. Using a pre-printed form and only filling in some data etc. would not be a valid will and would be dealt with as a case of intestacy. The testator should sign with his full name as it is officially used, for example in the passport or identity card
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German inheritance law: The capacity to testify The capacity to testify is of course one of the fundamental requirements of a valid last will in German law of succession Being a commonplace, in practice the question of full capacity to testify can often pose very delicate problems. German jurisdiction is full of examples where parties argue over the question whether the testator was intellectually and mentally apt to understand what his/her disposition really meant. Very often the issue is whether the otherwise mentally handicapped person - suffering for example from Parkinson, Alzheimer or also cancer - had a "lucid moment" when he/she testified. Proof can be very difficult and often only be gained with the help of a medical expert, be it a psychiatrist or neurologist. When such doubts might arise, it seems advisable that the testator consults a neurologist on the day, when he/she testifies. With such medical certificate accompanying the testament, it is practically not possible to deny the capacity in front of a court with any prospect of success.
Adopted children
German Inheritance Law: The legal role of adopted children in German inheritance law
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