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German-American Probate Law and Estate Planning: Legal Advice

At Schlun & Elseven Rechtsanwälte, our lawyers work with clients worldwide across all areas of German law. Our specialist in inheritance law, Dr. Thomas Bichat, has extensive experience in supporting our international clients in difficult cases of inheritance and probate law, namely German-American succession cases. Our team advises our clients in English and German, and we have worked with both heirs looking to enforce their succession rights and testators seeking to design a will.

This page will answer some critical questions regarding German inheritance law for American clients. If you require counsel from reliable experts in German inheritance law, please do not hesitate to contact our team using our details below. Our inheritance law team is looking forward to working with you.

Inheritance Law Services
for Testators

If you seek to design your will or to create an inheritance contract and your estate is located in both Germany and the US or your heir is in the USA. At Schlun & Elseven, our team is ready to advise you regarding estate planning and the options available to you.

Inheritance Law Services
for Heirs

Services for American heirs who have inherited property or assets in Germany, and for potential heirs who require further information regarding inheriting in Germany.

German Inheritance Law Services
for Estate Planning

If you seek to design your will or to create an inheritance contract and your estate is located in both Germany and the US or your heir is in the USA. At Schlun & Elseven, our team is ready to advise you regarding estate planning and the options available to you.

German Inheritance Law Services
for Heirs

Services for American heirs who have inherited property or assets in Germany, and for potential heirs who require further information regarding inheriting in Germany.

Inheritance issues can be overcome with the right support

At Schlun & Elseven Rechtsanwälte, our inheritance lawyers will be by your side

Our Services for Testators: German-American Probate Law and Estate Planning

Estate Planning and Our Expertise for Testators

When drafting a will in Germany that needs to consider either US-based assets or heirs, consulting with a legal professional will ensure that you avoid common pitfalls. Our lawyers will outline the primary differences between inheritance law in Germany and the USA, such as differences in estate and inheritance tax matters and how German law is applied on a federal basis and applied in the same manner nationwide. Succession cases in the USA and Germany, follow completely different regulations and procedures. Therefore, even if a US citizen has resided in Germany for many years, and has a strong grasp of the language, business culture and more, professional legal counsel is strongly advisable.

At Schlun & Elseven Rechtsanwälte, our inheritance law team has assisted global clients with estate planning and preparing wills. Our lawyers will advise you regarding drafting, revising and, if necessary, revoking wills in Germany, the opportunities and downsides of the inheritance contract and on important concepts under German law, such as the community of heirs, the compulsory share of inheritance and more.

Should a US citizen based in Germany seek to have their final will and testament carried out under US law, our legal team will advise them on the steps needed to ensure that will happen. Similarly, we can carry out the necessary steps to ensure that German inheritance is followed to the letter. Our team will expertly advise and support you with the legal issues that arise in German-American succession cases in all matters relating to German inheritance and German inheritance tax law, the EU Succession Regulation and double taxation in the field of German inheritance tax.

Intestate Succession in Germany

Settling your estate through a will or an inheritance contract is vital for maintaining control over how your legacy will be divided following your passing. Intestate succession under German law is provided for under § 1931 BGB. Intestate succession applies in cases where there are no wills; the will does not fulfil the legal requirements or where assets are excluded from the will.

Under intestate succession, the deceased’s spouse receives their share of the estate first. Their claim is determined by the surviving relatives of the deceased. If they have surviving children (or grandchildren, should the children be predeceased), the spouse will receive 25% of the estate. If the deceased has surviving parents, siblings or grandparents, the spouse gets 50% of the estate. However, if any of the named relatives do not survive the deceased, the spouse will receive 100% of the deceased’s legacy.

Family claims are determined by their “class” within the inheritance order. Any beneficiaries of a higher class exclude any potential beneficiary of the next class (§ 1930 BGB). Therefore, if a successor is in Class one, they receive the inheritance instead of sharing it with those in classes two and three.

The deceased’s children, for example, are in “Class One” with intestate succession. Class one (§ 1924 BGB) includes the deceased’s children and their children (the grandchildren and great-grandchildren of the deceased). According to § 1924 BGB, the children of the deceased inherit in equal shares. Within Class One, if the children of the deceased are alive at the time of the deceased’s passing, they represent their children in the inheritance (“principle of representation”). Therefore, the children of the deceased inherit rather than the grandchildren and the children.

Class two (determined under § 1925 I BGB) of successors include the deceased’s parents and their issue, such as the deceased’s siblings or their nieces and nephews. Class three (see § 1926 I BGB) of successors goes a step further back and includes the deceased’s grandparents and their issue, e.g. the deceased’s uncles, aunts and cousins.

Inheritance Tax Advice

Under German tax law, there is generally no requirement to file estate tax returns as the estate is not recognized as an independent entity. However, with inheritance tax heirs are taxed individually. Such tax rates and any exemptions arising vary depending on the relationship between the heir and the testator and the amount inherited. When dealing with estates that have German-American elements, it should be considered that Germany has a tax treaty with the USA (Germany-U.S. Estate and Gift Tax Treaty). Elements within that agreement may override domestic German inheritance law.

At Schlun & Elseven Rechtsanwälte, our inheritance law team will ensure that you receive full advice and comprehensive support in all matters relating to inheritance tax returns in Germany.

German Inheritance Law applied to a US Citizen

German inheritance law applies in cases where the deceased dies in Germany and was deemed a habitual resident there. This applies to those who have died after August 16th, 2015 whereby German courts apply the European Succession Regulation (Europäische Erbrechtsverordnung). There are exceptions to this rule, where the deceased person is deemed to have been more closely connected with another country, where they had chosen the application of the law of their nationality and/or if the decedent’s last habitual residence was elsewhere (e.g., the USA). Therefore, a US citizen may be subject to German inheritance law if they have made their life and reside in Germany.

Our Services for Heirs: German-American Probate Law and Estate Planning

Expert Legal Counsel for Heirs

It may be the case that you have inherited property or other assets based in Germany, and you are unsure of how to proceed next. Maybe you have questions regarding concepts such as the “community of heirs” (“die Erbengemeinschaft”), the inheritance certificate (“der Erbschein”) or what is involved with the compulsory share of the inheritance (“das Pflichtteil”). It could be the case that the estate has significant debts attached to it, and you need to know the process around refusing an inheritance in Germany. At Schlun & Elseven Rechtsanwälte, our inheritance law team is ready to support you as an heir in Germany.

For heirs based in the USA, our lawyers will outline the process of German probate law. Our team will provide clear guidance regarding the documents received and the requirements expected of you as an heir and assist you in obtaining the necessary files and evidence. German inheritance law can be significantly different to US laws in some areas, and our team has vast experience in supporting US-based clients in probate cases.

Under German inheritance law, the estate (the whole of the estate or part of it) transfers to the heir or heirs, as outlined under § 1922 (1) BGB (German Civil Code). A “community of heirs” is formed automatically by a succession involving several heirs, and it is outlined under § 2038. Under the community of heirs system, the estate automatically becomes their joint property under § 2032 para. 1 BGB and must be administered jointly by all heirs. Such an inheritance can arise in cases where the deceased did not leave a will (died intestate) or where they left the property to several people.

Being an heir in Germany can provide some challenges as they also assume the obligations of the deceased, such as their debts. In cases of overindebtedness, it may be in the benefit of the heir to refuse the inheritance. However, heirs should consult with legal representation before deciding on such matters, and they should contact them in haste, as there are time limits around the refusal of an inheritance.

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Practice Group: German Inheritance Law