General information on German inheritance law and the Certificate of Inheritance

According to German law, the estate located in Germany of a decedent underlies the principle of 'universal succession,' meaning that the heirs become owners of the decedent's estate upon his death. Succession is determined either by law or by disposition in contemplation of death.

The Purpose of a Certificate of Inheritance

If an heir (or heiress) wishes to assert a claim against a bank or other entity that he or she has taken over the legal succession of the deceased and has thus become the holder of a claim (e. g. for payment of the account balance), or would like to have the land registry office register him or her as the owner of the inherited property, the bank or land registry will usually require a proof of succession.

This is provided by a certificate of inheritance issued by the probate court. The certificate of inheritance states who has become an heir and to what extent. Without such a certificate of inheritance, a claim can often not be enforced in Germany and the land register cannot be corrected.

The Authority Responsible for the Issuance of the Certificate of Inheritance

The local jurisdiction of the probate court is governed by Section 343 of the Act on Proceedings in Family Matters and in Matters of Non-Contentious Jurisdiction.

The probate court in whose district the deceased was domiciled or - alternatively - resident in Germany at the time of death is responsible for the case. If the deceased was (at least also) German at the time of death, but neither did live in Germany nor did reside there, the probate court of Berlin-Schöneberg has jurisdiction.

However, if the deceased was not a German citizen and did not have a place of residence in Germany, then any probate court in whose district the estate is located in is responsible for the case.

The Application for the Certificate of Inheritance

In the application for a certificate of inheritance, the applicant must provide a number of different details that are decisive for succession and therefore for the content of the certificate of inheritance. Depending on the family circumstances, documents must be submitted to support the information in the application.

These are, for example, a copy of the last will, the death certificate of the testator and, if applicable, other birth certificates of the children, a marriage certificate or similar.

Philippine documents must be issued by the Philippine Statistics Authority (PSA) and must be legalized by the German Embassy. Information about the legalization process can be found here.

Foreign public documents might need a formal proof of authenticity, e.g. the Legalization or Apostille. In some cases, a document verification might be necessary. Find out here, which formality is relevant for different foreign public documents.

Public documents that are not issued in German or English language, must be presented with either English or German translation. Information about translators can be found through this link.

In addition, the applicant must affirm in lieu of an oath that he/she is not aware of anything that contradicts the accuracy of the information in the application (§ 2356 Para. 2 BGB). The affirmation in lieu of an oath must be notarized. In Germany, this is done by the court or a notary. In order to spare the applicant a trip to Germany, the notarization can be done at a German mission abroad (Embassy,
Consulate).

The German mission receives the filled-out questionnaire for preparing the application for a certificate of inheritance and the supporting documents, prepares the application and arranges an appointment for notarization. The applicant then submits the notarized application together with the other documents to the probate court responsible for the case, which finally issues the certificate of inheritance.

Overall, the procedure from the submission of the questionnaire to the notarization and issuance of the certificate of inheritance usually takes several months.

Fees for the Procedure

There are two costs for the applicant: Firstly, fees are payable for the notarization of the application for a certificate of inheritance at the German Mission in accordance with the Federal Foreign Office Special Fee Ordinance (Besondere Gebührenverordnung – AABGebV), the amount of which is set according to the region.

In addition, the probate court also charges fees for issuing the certificate of inheritance. The amount depends on the value of the estate.

Additional costs may arise from the procurement of documents supporting the application.

The above list is provided without guarantee and does not claim to be exhaustive.

About the EU Succession Regulation

The European Succession Regulation (Regulation EU No. 650/2012, EU Succession Regulation) has been applicable since August 17, 2015. This new EU regulation governs which inheritance law is to be applied to an international succession.

Previously, under German law (Art. 25 EGBGB), succession upon death was subject to the law of the state to which the testator belonged at the time of his/her death. If the deceased was German, German inheritance law therefore applied. This is changing as a result of the EU Succession Regulation.

For inheritance cases from August 17, 2015, the entire legal succession is subject to the law of the country in which the deceased had their last habitual residence at the time of their death (Art. 21 EU Succession Regulation).

In the future, courts and other judicial bodies in the EU member state (with the exception of the United Kingdom, Ireland and Denmark) will use the EU Succession Regulation to determine which national law applies if an inheritance case has a foreign connection.

Foreign regulations on intestate succession may differ considerably from German inheritance law regulations.

Where is the habitual residence?

A person has their habitual residence where they are staying under circumstances which indicate that they are staying in this place or in this area on a more than temporary basis. This is determined on the basis of the actual circumstances; it is established where the focus of social contacts is to be sought, in particular in family and professional terms. An intended continuous stay of more than six months is always and from the outset considered to be more than temporary; short-term interruptions are not taken into account.

A person's habitual residence can therefore change as soon as they move to another location. This applies to people who move abroad permanently, but also to those who only move abroad temporarily, at least if the stay there is planned for more than six months and the actual center of existence is relocated.

Determining habitual residence can be difficult. This applies, for example, if someone does not stay permanently in one place, but lives for a while in another country and then again for a while in Germany and has close social ties in both places.

Choice of law

Anyone who has their habitual residence abroad but still wants the law of succession of their country of nationality to apply in the event of their death must make a corresponding choice of law.

This choice of law must either be made expressly in a declaration in the form of a disposition of property upon death - usually a will - or must at least result from the provisions of such a disposition of property upon death (Art. 22 EU Succession Regulation). For reasons of legal certainty, an explicit choice is recommended.

The new EU Regulation must be applied if the testator dies on or after August 17, 2015 (Art. 83 para. 1 EU Succession Regulation). However, a choice of law made before August 17, 2015, which - for example - was made in accordance with the law of the state of which the deceased was a national (Art. 83 para. 2, 3 EU Succession Regulation), remains effective even after August 17, 2015.

Declaration of Renouncement of Succession

According to German law the heirs can declare the renouncement of succession to the German surrogate's court within six weeks, if the heirs are outside of Germany within six months after receiving knowledge about the case of succession. The signatures on the declaration will, as a minimum requirement of form, have to be certified (signature certification). Both parents (one if it is a case of sole custody) of minor children, have to declare the renouncement of succession on the children’s behalf. The declaration of renouncement may be executed before the consular officer at the competent German Mission or a Honorary Consul and must subsequently be submitted to the probate court by you.

Competent court for the acceptance of renouncement

According to German court regulations (Sec. 343 FamFG) the probate court (“Nachlassgericht”) competent for the proceeding is the court in whose administrative district the deceased had his last residence or stay. In case a German citizen passes away without residence in Germany, the following court is competent for the proceedings: Amtsgericht Schöneberg - Nachlassgericht- Ringstraße 9 12203 Berlin Germany. If a person without German nationality passed away without residence in Germany, the court in whose administrative district the assets are located is competent. In case there are assets in multiple administrative districts, the court initially approached becomes competent for all assets in Germany.

Form and deadline

The acceptance and renouncement is governed by Sec. 1942 to 1966 BGB (German Civil Code). The heirs can declare their renouncement to the competent German probate court within six weeks after being informed about the death and their entitlement as heirs. The deadline is six months in case either the heir stayed outside of Germany (irrespective of his/her actual residence) at the time of death or if the deceased had his sole residence outside of Germany. If an heir does not validly renounce within the legal deadline it is assumed that he/she has accepted the inheritance. The renouncement has to be recorded at the competent German probate court or can be given in writing as long as the signature is certified by a public servant (“öffentlich beglaubigt”). The certification can be carried out by a German notary public (“Notar”) or at your competent German Mission abroad. A declaration of renouncement in the prescribed form only becomes valid once it is received by the competent German probate court and not solely through certification of your signature at a German Mission abroad. It is not possible to renounce under any conditions or to renounce only for parts of the estate.

Renouncement for minors

In case a parent renounces, usually the right of inheritance would pass on to his/her children. In these cases, the right of inheritance has to be renounced for the children as well. The renouncement can be declared by a minor’s legal representative only. In case both parents hold parental responsibility, both will also have to sign the renouncement form. In some cases, a renouncement for minors has to be confirmed by the competent German family court before it can become valid. The family court’s approval has to be submitted to the competent probate court within the above mentioned deadline. The family court’s approval is not necessary, if the minor becomes an heir because the parent who legally represents the minor has renounced the inheritance.

Certification procedure at a German Mission abroad

For a certification your identity has to be established by presenting your valid passport. Please also bring along the duly completed renouncement form. Here, you will find downloadable draft forms for a renouncement with children and a renouncement without children. For the certification procedure at the German Embassy, no appointment is necessary. You can walk-in during the consular service hours that are from Tuesday to Friday, 8:00 a.m. to 9:30 a.m. The fee for certification of your signature is 56,43 EUR – to be paid by Master or Visa card or in PHP-equivalent cash.

After certification of your signature you will need to send the form to the competent German probate court (see above section “competent court”). Further correspondence regarding receipt and validity of the renouncement has to be carried out directly between yourself and the German probate court. Please keep in mind that the court language will be German only. The probate court will also charge a fee for handling of the renunciation. The probate court’s fee will depend on the value of the estate.

Considerations regarding your own estate

Even if many people shy away from thinking about their own death for understandable reasons, it makes sense to start thinking about your own estate planning today.

Consider, for example, which distribution of the estate corresponds to your wishes and whether you need to make a corresponding disposition of property upon death (usually this means making a will) in order for this to occur. Consider where you have your habitual residence and whether it is necessary in your case to make the choice of law described above.

If you have already made a will, it is recommended to recheck. If necessary, add a choice of law clause to it. Please note, however, that your addition is formally valid according to the law applicable when the will was drawn up.

If you are unsure: Seek advice!

Finally, the most important thing: Probate issues can be very complicated. If you are wondering how best to achieve an estate settlement that meets your wishes; if you are unsure where your habitual residence is, what the new settlement means for you in concrete terms, or if you have any other questions regarding the settlement of your estate, be sure to seek advice from specialized legal advisors or notaries.