German inheritance law and gift tax
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German Inheritance Law
Under Germany's inheritance laws a decedent's property passes directly to the heirs at the time of death.
According to German law, the estate located in Germany of a decedent is subject to 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 the event of death.
The executor or trustee of an estate, as envisioned in Anglo-American law, is unknown to German law.
However, the last will may nominate a "Testamentsvollstrecker" with the task to execute the will and adminster the estate.
However, heirs may have to prove their title of succession by a certificate of inheritance (“Erbschein” or "Nachlasszeugnis") which in some cases is required for the heir(s) to dispose of real estate or bank assets.
It is issued by a German Surrogate's Court (“Nachlassgericht”).
The Surrogate`s Court is usually located at the last residence of the decedent or if he had no residence in Germany, it is determined by the location of assets of the estate.
For the issuance of the Erbschein (certificate of inheritance), it is necessary that at least one of the heirs - under special circumstances also the executor or the trustee as named in an Anglo-American will - applies for the certificate by giving an affidavit / declaration in lieu of oath.
This application is filed with the Nachlassgericht (Surrogate´s Court) directly if there are heirs in Germany, a German “Notar” (notary) or by the German Missions (Ambessies) abroad.
The applicant usually applies in the name and on behalf of all heirs to get the certificate of inheritance (gemeinschaftlicher Erbschein).
He/she does not need a power of attorney to apply in their names.
Certificate of Inheritance
How to obtain a Certificate of Inheritance (Erbschein / Nachlasszeugnis)
In Germany
The Certifcate of Inheritance is issued by the German Surrogate´s Court (Nachlassgericht) at the last residence of the decedent.
The application can be put forwar by a lawyer, notary or by one of the heirs or creditors.
Outside of Germany - application via German Missions
German Missions need detailed information to draft a formal application.
Fregquently, it is recommended to enclose copies of all documents proving the right to inherit (e. g. last will, letters testamentary, death certificates, birth certificates, marriage certificates etc.).
The German Mission will draft the application document. The applicant has sigent the document personally.
As German is the official language in Germany, the text of the application will be put forward in German only.
If the applicant does not understand German, the consular agent will explain the contents of the paper to the applicant and translate it orally.
If he/she wants to have an English translation of the application, the applicant will be responsible for all costs incurred by a translation.
The German Mission can notarize copies, so the Surrogate´s Court (Nachlassgericht) in Germany receives a complete application with the pertinent documents enclosed.
The applicant will receive the original and a first certified copy of the application.
One of the copies has to be sent to the competent Nachlassgericht or the applicant's representative in Germany who will then forward it to the Nachlassgericht.
After having received the application, the Nachlassgericht will issue the Erbschein and forward it to the person named as recipient in the application.
The German Mission will charge a fee for the preparation of the application including the affidavit.
Declaration of Renouncement of Succession
According to German law the heirs can declare the renouncement of succession (Erbausschlagung) 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 of the declaration will ist 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.
In Germany the declaration of renouncement is declared before the competent Surrogate´s Court (Nachlassgericht) or at a notary.
Outside of Germany the declaration of renouncement is attested before the consular officer at the competent German Mission or an Honorary Consul.
