General information on German probate and composition proceedings

1. The local competence of a probate court depends on the district where the deceased had his last residence. Should the deceased have had his last residence abroad the court at Berlin Schöneberg would be locally competent. The law offices of Henning M. Haarhaus are situated in this district.

2. German probate courts have only a limited scope of functions compared to the probate courts operating under common law jurisdictions. The main task of the German probate court is to open the wills which therefore have to be delivered to the court. The court will only appoint a provisional administrator of the estate if an inheritor or his address is unknown. Such administrator would represent this unknown individual.

3. Inheritors can waive the accrual by a succession only within a specific period. In principal, such deadline expires six weeks after he/ she knew about both the succession and his/ her entitlement regarding the estate. Should either the inheritor or the decedent have livved abroad this period is extended to six months. The waiver must be effected and delivered at the local competent probate court by that time. In general, the signature on such declaration must be notarised by a German notary or the German general consulate. However, if the waiver would be declared abroad it would be sufficient if it complied with the formal legal requirements of that state (Art. 11 of the Introductory Act of the German Civil Code).

4. Rights to a compulsory portions or even to an augmentation of such compulsory portion in view of the testator´s donations may arise in shape of a money compensation in lieu of an inheritance for disinherited close relatives. Under specific circumstances such disinherited individualss might have to waive his insufficient or subsequent rights of inheritance or legacy beforehand. In other cases an inheritor might be entitled to claim for a completion of his testamentary share. In any event, entitlements for the compulsory share become time barred three years since the person concerned has become aware of the succession and the will affecting his legal share.

5. Spouses as well as the offspring of the decedent are entitled to a compulsory share. Should no descendants exist the parents would be entitled but not the siblings. The compulsory share is a money claim and amounts to half of the value of the legal share. It is computed on the basis of the estate value less the related debts. Furthermore, donations effected by the decedent may also affect the quota. The German probate courts supervise neither the assertion of such share nor their settlement. The person entitled to such share will have to pursue his claims against the inheritor.

6. Children of a male decedent which were born out of wedlock after June 30, 1949 have been legally equated with legitimate children since April 1st, 1998. However, this does not apply to children which have agreed with the decedent upon an early equalization of inheritance according to the former regulation as stipulated in § 1934 d of the German Civil Code.

7. Legacies, i.e. the gift of specified assets or an amount of money left in a will, must be performed by the inheritors in order to fulfill the succession in this regard. The probate courts do not supervise the settlement of such bequest claims.

8. More than one inheritors form a community of inheritance. They can dispose over any assets forming the estate only by unanimous consent. Every single inheritor may claim and sue for the dissolution of such community unless the decedent testated or the inheritors jointly agreed upon otherwise. In regard to real estate he can apply for a compulsory partition by auction. The dissolution of the community is solely the business of the inheritors and is not arranged by the probate courts.

9. Upon application German probate courts issue certificates of inheritance. These certificates serve as a means of the inheritors´ identification to third parties and are only required upon such third party´s request. However, a certificate of inheritance is not needed if the succession is due to a notarised will. In that case notarised copies of the testamentary disposition and the minutes of the opening usually serve as sufficient proofs for the succession. Should a certificate of inheritance be needed in order to settle the estate one inheritor can apply for such certificate on behalf of all inheritors at the probate court, at a German notary or at the general consulate.

10. The rectification of the land register is free of charge if applied for at the district land registry within to years since the succession.

11. Inheritors are liable for the debts of the decedent. Their liability is not limited to the assets forming the estate. In order to avoid an unrestricted liability one is well advised to take the initaitive and make use of the various measures provided by the law in order limit his liability.

12. The interpretation of a will does not provide a strict adherence to its wording because the decedent´s will is relevant in this regard and not the way he expressed such will. For instance, it may occur that a decedent used technical terms which he may had not understood completely. One might also object that a settlement relying on the will´s wording would imply a deviation from the decedents´ concept of distribution. If such concept is manifested at least in the outlines of the will one could additionally refer to other indications and evidence apart from the testament for the interpretation, such as letters, oral remarks. Such question may be discussed within a proceeding in regard to the issuance of a certificate of inheritance.

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