1. General Information and competences
In German law, the estate of a deceased person (“testator”) is transferred directly to the heir or heirs (so-called “Universalsukzession”).
The certificate of inheritance (“Erbschein”) or the European Certificate of Succession (“Europäisches Nachlasszeugnis”) serves as proof of who has become heir. These certificates are issued by the court in Germany or the court of the deceased’s last habitual residence at the request of one or more heirs. By applying for a certificate of inheritance or ECS, the heir also indicates that he has accepted the inheritance.
Attention: If the testator died abroad after August 16th 2015 and had his or her habitual residence abroad, German courts do not usually issue a certificate of inheritance, as there is no jurisdiction, even if only estate is located in Germany, unless the testator had made an express choice of German law for his succession.
In some cases (e.g. when the estate is over-indebted) it may be advisable to reject the inheritance. To do so, the heir must declare to the probate court within a certain period of time that he/she is refusing the inheritance. Anyone who does not reject the inheritance within the deadline has become the heir.
2. Application for a certificate of inheritance
As a rule, one only has to present a certificate of inheritance if there is no notarial will and no notarial inheritance contract. The certificate of inheritance is an official record of who is the heir or heiress of the deceased person and the scope of the inheritance. Private and hand-written wills should at least be certified so that they are valid before the land registry and banks. The certificate of inheritance must be applied for at the probate court in whose district the deceased was last habitually resident.
The certificate of inheritance is regularly requested in order to prove to banks that one is entitled to pay off assets and to possible buyers of real estate that one is entitled to do so.
When issuing the certificate of inheritance, the probate court only examines the state of affairs at the time of the inheritance. In the case of communities of heirs, disputes about the inheritance are the order of the day and more recent court rulings always give priority to those entitled. The issued certificate of inheritance can be contested by the joint heirs in the same way as the will if the court finds that it contains incorrect information.
3. Application for a European Certificate of Succession (ECS)
For inheritance cases that occurred after August 16th 2015, there is the possibility of applying for an ECS. The application for the ECS should always be considered if proof of inheritance is needed in several EU Member States.
In many ways, a ECS is equivalent to the German certificate of inheritance, but independent procedural rules apply (§§ 33 ff. IntErbRVG). The issuing of an ENZ requires that it be used as proof in another Member State. As in the case of a certificate of inheritance, an application, the presentation of certain documents and an affidavit are required. In accordance with Art. 4 of the EU Inheritance Regulation (Regulation EU No. 650/2012, EU ErbVO), the courts of the country in which the testator had his habitual residence at the time of his death are regularly responsible for issuing the ECS.
4. Advantages and disadvantages of the certificate of inheritance and the ECS
One advantage of the conventional certificate of inheritance is that it is tailored precisely to the German legal system. The ECS, on the other hand, is more varied in content and is intended to have an impact in all Member States of the European Union: It can only reflect the legal situation applicable to the succession as a whole.
The effects of the certificate of inheritance and the ECS are identical, although the protection of good faith of the certificate of inheritance is more extensive. The certificate of inheritance is valid for an unlimited period of time, whereas the ECS is generally only valid for 6 months. An extension of the validity period or a new certified copy can be applied for at the competent court against payment of a fee.
In the exclusive area of application of German law, it will normally not make any difference whether a certificate of inheritance or an ECS is presented. However, the ECS has the advantage that it can be used as a document of proof in the case of estates located abroad. This means that it may be advantageous to apply for an ECS if the testator’s estate is located, for example, in Germany and France and proof is required in both Member States. Proof is regularly required, for example, when an account of the deceased is to be accessed or, in particular, when a property of the deceased is involved.
If the conditions for issuing an ECS by a competent foreign court are met, the German probate court may refuse to issue a German certificate of inheritance.
If the testator died before August 16th 2015, only the certificate of inheritance can be applied for.
5. Considerations regarding your own estate
Even if many people shy away from the thought of their own death for understandable reasons, it is still advisable to deal with one’s own estate planning at an early stage.
Consider, for example, where you have your usual place of residence and think about the distribution of your estate in accordance with your wishes and whether, in order for this to happen, you need to draw up a will. Consider whether in your case it is necessary to make the choice of the competent law.
If you already made a will, check it. If necessary, add a choice of the competent law for your entire succession.