What is the Certificate of Inheritance in Germany (“der Erbschein”)?
As stated above, the certificate of inheritance (“der Erbschein”) is a document that identifies heirs when they approach insurance companies, banks, tenants/landlords, business partners and other bodies. It provides clear identification of the heirs. It is vital in cases where the testator has not left a notarized will or contract of inheritance. The law for the certificate of inheritance can be found between §§ 2353 – 2370 BGB. Alternatively, a testator can grant an individual the power of attorney if that power of attorney is valid following the deceased’s passing. A certificate of inheritance may not be needed when the testator has left a notarized will.
The application for a certificate of inheritance should be made at the probate court or notarized at the public notary. It is not provided automatically. Contact an experienced inheritance lawyer if there is any fear of disputed inheritance.
With the certificate of inheritance, the heir can then make decisions and legal transactions on the property and assets inherited. Once it has been issued, the heirs can decide on loans that have made, debts that exist, and selling the property in question. However, it should be noted that the extent to which a person can make such decisions is based on the amount they have, in fact, inherited. The certificate of inheritance (der Erbschein) will outline the amount you have inherited and whether you are a sole heir.
In cases where a property has fallen into the hands of multiple heirs, a “community of heirs” develops under German law.
Joint Certificate of Inheritance (“der Gemeinschaftlicher Erbschein“)
There are different forms of the certificate of inheritance, and they are based on the number of heirs and other factors. In cases where there is one clear heir, they can apply for a sole certificate of inheritance (“der Erbschein”), whereas in cases involving multiple heirs, there is a joint certificate of inheritance (“der Gemeinschaftlicher Erbschein”). The joint certificate of inheritance requirements is outlined under § 352a FamFG:
§ 352a – Joint Certificate of Inheritance (“der Gemeinschaftlicher Erbschein”).
- If there is more than one heir, a joint certificate of inheritance shall be issued upon application. The application may be submitted by any one of the heirs.
- In the application, the heirs and their shares of the inheritance shall be stated. The statement regarding inheritance shares is not required when in the application all applicants waive the inclusion of the inheritance shares in the certificate of inheritance.
- If all of the heirs do not apply, it shall contain a statement that the other heirs have accepted the inheritance. § 352 (3) FamFG shall also apply to the applicant’s information concerning the other heirs.
For the joint certificate of inheritance (“der Gemeinschaftlicher Erbschein”), the share of all heirs must be established, and these heirs must have accepted their inheritance. This joint certificate outlines who the heirs are and what they are all entitled to.
A partial certificate of inheritance can also be applied for in the case of more than one heir. This certificate does not detail what the other heirs are entitled to but outlines what the individual in question is entitled to. All co-heirs can apply for this.
Receiving a Certificate of Inheritance (“der Erbschein”)
As stated above, the certificate of inheritance (“der Erbschein”) is not automatically issued. Heirs must apply for it at the competent probate court or a public notary. When seeking a certificate of inheritance, you are obliged to submit documents showing that you are entitled to inherit by statutory succession law. One element of statutory succession law concerns the Pflichtteil / compulsory share of inheritance which applies to certain close family members. Essentially, they cannot be excluded from the will and are entitled to certain percentages of an inheritance (at a minimum).
The documents needed to apply for the certificate include the following:
- your personal identity card/passport,
- the death certificate of the individual,
- marriage certificate (in case of a spouse),
- family register, birth certificate in case of children (demonstrate family relationship),
- signed affidavit that no will or inheritance contract is known of,
- names and addresses of co-heirs (siblings, parents etc.),
- death certificates of co-heirs should now be excluded from inheriting (where possible co-heirs have died before the testator).
The full list of documents required when seeking a certificate of inheritance will vary from case to case. Therefore, it is worth contacting a legal professional in advance of your application to ensure that you submit the right documents for your case.
It should also be noted that there is a cost involved in these applications. The fees in question concern:
- certifying the affidavit of accuracy regarding the lack of notarized will or inheritance contract,
- the fee for the granting of the certificate of inheritance.
The fee for the granting of the certificate of inheritance will vary from case to case, and it will be based on provisions within the GNotKG (Law on costs of voluntary jurisdiction for courts and notaries). However, there are likely to rise in the legal costs when there are issues in dispute.
Refusing an Inheritance
It is not a requirement that a person accepts the inheritance they are entitled to. If you find yourself in a situation where, for example, you are in a community of heirs but do not believe that the amount inherited is worth the trouble involved, it is possible to refuse an inheritance. This can be worth considering when the testator has left significant debts or where the property in question is not profitable.
If you consider or plan on refusing an inheritance, contact a legal professional to make sure that it is the right decision. However, if you are considering this step, you must act fast as there is a deadline of six weeks following the knowledge of inheritance in which a person is entitled to refuse the inheritance.
Incorrect Issuing of the Certificate of Inheritance (“der Erbschein”)
The incorrect issuing of a certificate of inheritance will lead to the declaration of it as invalid. It will also be confiscated. The incorrect issuing of a certificate of inheritance can arise when the person claiming it misleads the issuer by intentionally providing incorrect information. Intentional misleading can lead to serious consequences. Therefore, if you are facing this accusation, it is crucial to consult with a legal expert. If a person has intentionally been misleading and has received a certificate of inheritance based on that, they likely know another person (or persons) has been made heir. Such an action can lead to imprisonment.
However, it is not always the case that the incorrect issuing of a certificate of inheritance is provided due to deliberate misleading. In this scenario, the person issued with the certificate of inheritance is presumed to have had the assumption based on false information rather than deliberate intention. This is provided for under § 2365 BGB, which states:
It is presumed that the person who is named as heir in the certificate of inheritance has the right of succession stated in the certificate, and that he is not restricted by any directions other than those stated.
Further Considerations Involving the Certificate of Inheritance in Germany (“der Erbschein”)
If you are thinking of applying for a certificate of inheritance in Germany, please bear in mind the following points:
- Minors: Minors can inherit in German law, but they must have representation. In such cases, the parents or guardians of the child are the ones who will represent them.
- Heirs: Whether you are an heir or not will be determined either by a will or testament or by statutory requirements. It is difficult for statutory heirs such as close family members to be fully disinherited, but in certain cases, it is possible.
- Disinherited: The testator may have disinherited you in advance, and in such a situation, your application for the certificate of inheritance is likely to be unsuccessful.
- Receiving the Certificate: Once the application has been made and the correct documents have been submitted, you will receive the certificate in a few weeks by post. Delays are not unusual when it comes to the issuing of the certificate.
- Refused a certificate: If you have been refused a certificate of inheritance by the probate court, you have one month in which to launch an appeal of that decision.
- Disputes: The issuing of a certificate of inheritance may lead to disputes arising. In such a case, it is important to contact a legal professional to work with you. Such disputes can be lengthy affairs and also incur high costs. The estate also cannot be acted upon during the time of the legal dispute. A lawyer will help you establish your legal position as an heir, settle disputes among the community of heirs and keep you informed about the estate’s status.
At Schlun & Elseven Rechtsanwälte, our inheritance law team will look to avoid lengthy in-court legal disputes. Insofar as it is beneficial to our clients, we will look to resolve matters outside of the courtroom. However,