Obtaining probate in Germany

The equivalent of a Grant of Probate in Germany is called a Certificate of Inheritance (Erbschein) or Certificate of Executorship (Testaments-vollstreckerzeugnis), both of which are issued by the German probate court (Nachlassgericht).  It is necessary to have either a Certificate of Inheritance or a Certificate of Executorship in order to access the assets of an estate located in Germany.

In Germany the principle of ‘universal succession’ applies, meaning that upon the death of a person their heirs automatically become the owners of both the deceased’s assets and debts. However, the beneficiaries must prove their entitlement by a Certificate of Inheritance. Ordinarily, there is no such thing as an executor or trustee of an estate in Germany, unless the testator has stated in their will that their estate should be administered by an executor (this is usually in the case where the deceased has a foreign will i.e. not a German will). In this instance, a Certificate of Executorship is necessary.

Certificate of Inheritance

In order for the court to issue a Certificate of Inheritance at least one of the heirs must apply for the certificate by giving an affidavit/declaration in lieu of oath. This application can be filed with the Nachlassgericht directly, providing there are heirs in Germany, using a German notary public (Notar) or via the German Missions abroad. Ordinarily one applicant applies on behalf of all the beneficiaries. A power of attorney is not required for them to apply on behalf of the other heirs.

Along with the application the claimant must also file the following supporting documents:

  • Original or court certified copy of the will
  • Original or court certified copy of the grant of probate
  • Original or notarised copy of death certificate
  • Original or notarised copy of the passport of deceased and the applicant

In the case of intestacy, certificates proving the family relationship (e.g. marriage certificate, birth certificate, divorce judgement) are required.

Some courts may demand that the documents are court certified or substantiated by a Hague Apostille Certificate. In addition, if the judge is not fluent in the language used in the supporting documents, they may request that the documents are translated and verified.

Which court is applied to depends on the last residence of the deceased. If the deceased was not resident in Germany, it is determined by the location of assets of the estate or the applicant can file for the certificate with the probate court in Berlin-Schöneberg.

Certificate of Executorship

In the case where a will names an executor, a Certificate of Executorship (Testaments-vollstreckerzeugnis), must be obtained. A Certificate of Executorship identifies the legitimate executor and gives them the right to administer the estate and dispose of/distributed assets in accordance with any limitations outlined in the certificate.

If the German estate includes property, a German Certificate of Inheritance is still required, in order for the executor to transfer the property in the name of the heir(s).

Renouncing a German inheritance

As debts as well as assets are inherited by the heirs of an estate in Germany, German law allows beneficiaries to waive their rights to an inheritance. In order to disclaim an inheritance in Germany, the beneficiary must submit a Declaration of Renouncement of Succession to the Nachlassgericht within six weeks of being informed of the inheritance. If the beneficiary is not resident in Germany, they have six months to submit the declaration.

Find out more about renouncing an overseas inheritance here: Waiving a foreign inheritance.

If you’re unable to make the declaration of renouncement in person in Germany, it is possible to submit the form with a certification of your signature. It is recommended that you also you enclose copies of all documents proving the right to inherit (i.e. last will, letters testamentary, death certificates, birth certificates, marriage certificates etc.)

Inheritance Tax in Germany

The beneficiaries must file a notice of inheritance with the relevant German Tax authority within 3 months.

In Germany, inheritance tax is paid separately by each beneficiary. The amount of German inheritance tax payable differs depending on the value of the inheritance received by the beneficiary and their relationship to the deceased. The tax rates are between 7 per cent and 50 per cent.

If neither the deceased nor the beneficiary are tax resident in Germany, German inheritance tax will only be due in respect of immoveable property located in Germany (ie houses, apartments etc). No German inheritance tax will be payable by a beneficiary in relation to a bank account, for example, where neither the deceased or beneficiary were tax resident in Germany.

Where the beneficiary is tax resident, there are tax free allowances available if they are a spouse or descendent of the deceased. The value of these allowances vary depending on the beneficiaries relationship to the deceased and the age of the beneficiary.

Legal costs

German lawyers’ fees are in accordance with a set statutory scale of fees in respect of representation in court proceedings. The fees are dependant on the value of the assets in Germany, therefore the higher the value of the assets, the higher the fees. There is a minimum fee but not maximum fee. Contact us today for a quote on 01244 470339.

If you require assistance with a German inheritance matter, please contact us on 01244 470339 or email info@worldwidelawyers.co.uk and our friendly team will be happy to help. 

Author: Sara Janion, overseas legal expert, solicitor and Notary Public