German inheritance law is set out in Book Five of the German Civil Code (Bürgerliches Gesetzbuch, BGB, §§ 1922 et seq.): statutory succession, wills and inheritance contracts, acceptance and disclaimer of an inheritance, liability for the debts of the estate, the compulsory share (Pflichtteil), unworthiness to inherit and the sale of an inheritance. Proceedings before the probate court – such as the issue of a certificate of inheritance (Erbschein) – are governed by the Act on Proceedings in Family Matters and in Matters of Non-contentious Jurisdiction (FamFG, §§ 342 et seq.). Where an estate has a cross-border element, the European Succession Regulation (EuErbVO) must also be taken into account.
A person becomes an heir either under a disposition upon death (a will or an inheritance contract) or by statutory succession. Statutory succession applies where there is no will or the will does not cover the entire estate. First-order heirs are the descendants of the deceased – children, grandchildren, great-grandchildren (§ 1924 BGB); grandchildren take the place of a parent who has already died (§ 1924 para. 3 BGB). The surviving spouse does not belong to any order but has a statutory right of inheritance of his or her own alongside the relatives (§ 1931 BGB; under the community of accrued gains, additionally § 1371 para. 1 BGB).
Deadline for disclaiming an inheritance in Germany
The period for disclaiming an inheritance is six weeks from the time the heir learns that the inheritance has passed to him or her and of the reason for the succession (§ 1944 paras. 1 and 2 BGB). It is six months if the deceased’s last residence was only abroad or if the heir is abroad when the period begins (§ 1944 para. 3 BGB).
The succession occurs on the death of the deceased. As a rule, the competent court is the probate court at the deceased’s last habitual residence (§ 343 FamFG). Under German law, the estate passes to the heirs automatically on the death (§§ 1922, 1942 BGB) – no declaration of acceptance is required. The heirs take over not only the assets but also the debts of the estate (§ 1967 BGB); under certain conditions, liability can be limited to the estate (§§ 1975 et seq. BGB). Accepting only part of an inheritance – the assets but not the debts – is not possible (§ 1950 BGB): an inheritance can only be accepted or disclaimed as a whole.
If the period expires without a disclaimer having been declared, the inheritance is deemed accepted (§ 1943 BGB). The disclaimer is declared to the probate court – either on the record of the court or in publicly certified form, i.e. with a signature certified by a notary (§ 1945 para. 1 BGB). It can also be filed with the local court (Amtsgericht) in whose district the person disclaiming has his or her habitual residence (§ 344 para. 7 FamFG). An authorised representative needs a publicly certified power of attorney (§ 1945 para. 3 BGB). What matters is that the declaration reaches the court in time.
Heirs living abroad can have their signature on the declaration of disclaimer certified by a notary in their country of residence; depending on the country, an apostille or legalisation and a translation into German are then required. In some cases, certification by a German diplomatic or consular mission is also possible – this should be clarified with the mission in advance.
Yegor had already come to our firm several years earlier. His father had been living in Germany for a long time at that point – he had moved there as an ethnic German resettler (Spätaussiedler). His sons did not want to leave with him at the time. Later, Yegor decided to move to Germany as well and wanted to obtain Spätaussiedler status in his own right rather than being included in his father’s admission notice. Those proceedings were concluded at the time.
This time Yegor had a completely different problem – his father had died. He had not left a will. The estate consisted of a car and savings. The difficulty was that Yegor’s brother lives in Russia, holds Russian citizenship and had no way of travelling to Germany to deal with the inheritance. The young man wanted to know how the matter could be settled without unnecessary effort and expense.
Our lawyer explained the legal position: in the absence of a will, the descendants inherit in equal shares (§ 1924 paras. 1 and 4 BGB), where applicable alongside a spouse entitled to inherit. Several heirs initially form a community of heirs (Erbengemeinschaft, § 2032 BGB). Yegor’s brother essentially had two options: he could grant a trusted person in Germany a publicly certified power of attorney to act for him in the certificate-of-inheritance proceedings and the division of the estate, or he could disclaim the inheritance. Importantly, German law does not recognise a disclaimer “in favour of” a particular person. If an heir disclaims, the inheritance is deemed never to have passed to him; his share goes to whoever would have been called if he had not been alive at the time of the death (§ 1953 paras. 1 and 2 BGB) – if the person disclaiming has children of his own, as a rule it goes to them (§ 1924 para. 3 BGB). The lawyer therefore first clarified the family circumstances, because only if the brother has no further descendants does his share pass to Yegor. The brothers agreed that, once the estate had been settled, Yegor would transfer half of the money to his brother. The lawyer pointed out that such an arrangement rests on mutual trust and may have tax consequences. The six-month period under § 1944 para. 3 BGB applied to the brother. At the client’s request, the lawyer also explained the situation to the brother by telephone.
The lawyer drafted the declaration of disclaimer for the brother. He had his signature certified by a notary where he lives; an apostille was added to the certification, and the document was translated into German in Germany by a sworn translator. Yegor filed the declaration with the probate court in good time before the period expired. He was then able to apply for the certificate of inheritance (§§ 352 et seq. FamFG).
The lawyer then advised the client on the application for the certificate of inheritance and on settling the estate (the car and bank balances) and accompanied him to the appointment at the probate court.
Disputes over an estate often put a strain on families. In this case, the inheritance was settled by agreement, and the relationship between the brothers remained intact.
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