Owing to the large-scale migration of ethnic German resettlers (Aussiedler) from the states of the former Soviet Union to Germany, a great many families ended up separated by the borders of two countries.
This was also the situation of Grigori (name changed), a client of our firm. As early as the beginning of the 1990s, Grigori's grandfather returned to his homeland, Germany, together with his younger son Viktor (name changed), while his elder son Ilja, Grigori's father, remained in Russia. Ilja stayed in touch with his father throughout his life, but a close relationship with his brother never developed. After his father's death, Grigori broke off contact completely with his uncle, who for his part showed no interest in his nephew's life.
Statutory succession (gesetzliche Erbfolge)
If a first-order heir (a child of the deceased) has died before the deceased, that heir's own children take his or her place by way of succession by lines of descent (Erbfolge nach Stämmen, § 1924 para. 3 BGB).
The need to re-establish contact only arose after the grandfather's death: Grigori wanted to know whether he was entitled to a share of the estate and asked Viktor for help. Unfortunately, however, Viktor did not respond to his nephew's letters. As Grigori was afraid of missing statutory time limits, he did not want to wait long and turned to our firm.
Our lawyer explained to Grigori that, under § 1924 of the German Civil Code (Bürgerliches Gesetzbuch, BGB), the descendants of the deceased are statutory heirs of the first order, and that the children inherit in equal shares (§ 1924 para. 4 BGB). As his father Ilja had already died, Grigori took his place under § 1924 para. 3 BGB and inherited directly the share of the estate that would have been due to Ilja. German law does not require a separate acceptance of the inheritance: the estate passes to the heirs automatically on the death of the deceased (§§ 1922, 1942 BGB). Only the disclaimer (Ausschlagung) is subject to a time limit – generally six weeks, or six months if the deceased's last domicile was only abroad or the heir is abroad when the period begins (§ 1944 BGB).
On the basis of this information, Grigori asked us to inform Viktor of his wish to receive the share of the estate due to him following his grandfather's death. On our client's behalf, the lawyer sent Viktor a formal notification of Grigori's intention. Viktor was invited to file, together with our client, an application with the probate court (Nachlassgericht) for the issue of a joint certificate of inheritance (gemeinschaftlicher Erbschein, § 352a FamFG), in order to simplify the procedure for both parties.
This is because, under § 2032 BGB, where there are several heirs the estate initially constitutes their joint property (Erbengemeinschaft). Only in a further step, the division of the estate (Auseinandersetzung, § 2042 BGB), are the corresponding shares of that property to be allocated to each heir, who may then dispose of them alone.
This time Viktor did not ignore the notification and told our lawyer that he was prepared to proceed jointly.
The lawyer then prepared the relevant application and enclosed the required documents, in particular the death certificates of the grandfather (the deceased) and of Grigori's father Ilja – the latter to prove that Grigori had taken Ilja's place – and documents proving the heirs' relationship to the deceased. The remaining information in the application must be affirmed in lieu of an oath (eidesstattliche Versicherung, § 352 para. 3 FamFG). The application for a certificate of inheritance was filed with the probate court in whose district the deceased last had his habitual residence (gewöhnlicher Aufenthalt, § 343 para. 1 FamFG); this habitual residence in Germany also meant that German inheritance law applied (Art. 21(1) EU Succession Regulation, EuErbVO).
Having examined the documents submitted by our lawyer, the court confirmed the heirs' entitlement, and Grigori and Viktor were issued with a joint certificate of inheritance showing each of them as co-heir to one half. This does not give either heir the right to dispose of half of the estate assets alone: as long as the community of heirs exists, the co-heirs can dispose of estate assets only jointly (§ 2040 BGB); a co-heir can dispose only of his share in the estate as a whole, and only in notarial form (§ 2033 para. 1 BGB).
Our lawyer also advised Grigori and his uncle to divide the estate promptly by means of a division agreement (Erbauseinandersetzungsvertrag, § 2042 BGB). As the estate included a house, the agreement required notarial recording (notarielle Beurkundung, § 311b para. 1 BGB); ownership passes only upon conveyance (Auflassung) and registration in the land register (Grundbuch) (§§ 873, 925 BGB).
Grigori was very satisfied with the outcome, but some time later he contacted our lawyer again to clarify how he could sell the one-half co-ownership share in the house allotted to him on the division of the estate. Our lawyer explained to Grigori that after the division of the estate (Auseinandersetzung des Nachlasses) – that is, after the notarial recording of the agreement concluded between Grigori and his uncle and registration in the land register – he could, as co-owner (§§ 1008 et seq. BGB), dispose of his share alone (§ 747 sentence 1 BGB). The lawyer pointed out, however, that his uncle would then have no statutory right of pre-emption: the co-heirs' (Miterben) right of pre-emption (Vorkaufsrecht) under § 2034 BGB applies only while the community of heirs exists, where a co-heir sells his share in the estate to a third party, and must be exercised within two months. Grigori could nevertheless first offer Viktor the opportunity to buy the share of the house from him and, if Viktor declined, go on to market it on the property market.
Grigori followed our lawyer's recommendations and subsequently instructed him to provide full legal support for the purchase agreement for the share of the house located in Germany. The purchase agreement was subsequently concluded.
With this example from our firm's practice, we would like to emphasise that, even as a national of another country, you can enforce your rights and legitimate interests in Germany. A lawyer can support you in enforcing your rights as an heir, even if you live abroad.
All rights reserved. If this article is copied or republished, the source must be cited.
