Bank Information in the Case of Inheritance
Accessing bank information is vital in inheritance cases. Our German inheritance lawyers support those from abroad who require assistance with international inheritance cases in Germany. In the following, we will explain the requirements that heirs must meet who seek information about a deceased individual’s bank account.
The Bank’s Conduct – Banking Secrecy
In most cases, a bank only becomes aware of the death when the heirs contact the bank. In principle, the bank is obliged to maintain banking secrecy vis-à-vis the heirs, even in such cases. The bank can wave this obligation if the heirs can identify themselves as such. As an heir, it is your duty to prove to the bank that you are authorised to obtain information about the deceased’s account. You legitimise yourself as an heir if you present a certificate of inheritance or a will to the bank.
If the bank has proof of your status as heir, you have a right to information from the bank. According to § 666 BGB in conjunction with § 675 para. 1 and § 1922 BGB, the bank is obliged to provide information if you present the required information. It is possible for the heir to obtain all account-related information, including information about past transactions. If an heir follows the requirements, it is no longer possible for the bank to invoke banking secrecy. However, an exception to this applies if the deceased person instructed the bank before his or her death not to disclose certain information.
Right to Information in the Case of Co-Heirs
In the case of a community of heirs, the right to information applies to each co-heir. Provided that the co-heir proves their entitlement as such, they may therefore obtain information about the deceased’s account from the deceased’s bank. This does not require the consent of the other co-heirs. It should also be noted that the information passed on to the individual co-heirs is communicated to the entire community of heirs.
The community of heirs can be a complicated situation, and especially in international inheritance cases. Our inheritance experts will advise you as to your rights and responsibilities.
Disposition of the Testator’s Account
Potential Difficulties with the Communities of Heirs
Disposition of the testator’s account is more complicated if there are several heirs compared to cases with one heir. The power of disposal in the case of a community of heirs is in principle clearly regulated. If such a community of heirs exists, it may only dispose of the estate jointly per § 2040 BGB. Accordingly, a disposition of the testator’s account is only possible if the community of heirs agrees. Therefore, the withdrawal of a sum of money is only permitted if all co-heirs do so jointly. Therefore, one of the co-heirs can’t demand payment of their share of the inheritance from the credit institution.
If a co-heir disagrees, the joint disposition is no longer possible. In such a case, the only option left to the other co-heirs is to file a lawsuit to implement their plans regarding the account.
An exception to the principle of joint disposition arises by way of an emergency disposition by a co-heir. The emergency disposition is not expressly standardised by law and is only possible in extremely exceptional cases. Make sure to contact an inheritance law specialist concerning the options available to you in such cases. In both domestic and international inheritance cases in Germany, the lawyers at Schlun & Elseven Rechtsanwälte are here to provide comprehensive support.
Joint Accounts of the Testator
Issues regarding the disposition of the testator’s account may arise in the case of disagreement of the community of heirs and cases where the testator has held a joint account. Joint accounts can exist as an “and” or an “or” account. The former (the “and” joint account) exists if the account holders can only dispose of the account together as a collective. The individual is, therefore, by themselves, not entitled to dispose of the account. This also means that in the event of a death, an individual account holder cannot dispose of the account without the consent of the deceased person’s heirs.
A joint account in the form of an “or” account exists if all account holders are equally and independently entitled to dispose of the account. In this case, the individual can therefore dispose of the account alone. In the event of the death of one of the account holders, the other is still entitled to dispose of the account. The only thing to note here is that in such a case, the money deposited in the account is usually not the sole property of the account holder who is still alive. The account holder is obliged to compensate the heirs financially. An exception to this is only made if something else was agreed in writing before the account holder’s death.
International Inheritance Cases – Right of Information and Disposal
If you live in Germany and have inherited abroad, or live abroad and have inherited in Germany, our expert inheritance lawyers are here to support you. International inheritance cases are complex and legal advice is strongly recommended to ensure that you receive your inheritance.
Which Law of Succession Applies?
The first question is whether German or foreign inheritance law applies. To clarify this question, the states involved and their legal systems are decisive. In some states, a person’s estate is decided based on the principle of nationality or the principle of domicile.
According to the nationality principle, the nationality of the deceased is decisive. An example of the nationality principle in action is that if the testator is German, German inheritance law applies to domestic assets and assets abroad. This principle is followed by states such as Germany, Italy, Spain and many others. Other states apply the principle of domicile, according to which the last domicile of the testator is decisive. Norway and Switzerland, among others, follow this principle. For this reason, it is strongly advised to contact our firm directly to allow our legal team to examine your individual case.
Right of Information and Disposal
It is possible for those living abroad to inherit in Germany, and the country in which the heirs live is irrelevant for the succession. Accordingly, you can also be the heir of a testator as a German living abroad. In these cases, you must be able to prove that you are entitled as an heir to the deceased’s bank information or dispose of the account. A notarized will or a certificate of inheritance could prove this.
In an international inheritance case, however, banks often hold back on paying out sums of money. This is justified by the tax liability applicable under § 2 Inheritance Tax and Gift Tax Act (ErbStG). According to § 16 ErbStG, heirs are liable to pay tax if they acquire a certain amount of money through an inheritance. If the credit institution now pays out a sum that would have to be taxed under German law, the bank is liable under § 20 para. 6 ErbStG if the inheritance tax has not been paid. To avoid this, credit institutions often ensure that the bank is not liable in such a case. To this end, the bank first requires the heir to provide proof that the tax office has no reservations regarding the disposition of the estate.
Tax Liability in the case of an Inheritance with a Foreign Connection
If you are living in Germany and inherit from a person who previously lived abroad and died there, not only does German tax law apply, but the other country’s tax law must also be observed. However, the taxes paid abroad can be credited in Germany so that they reduce the amount to be paid in this country. However, the foreign inheritance tax must be similar to the domestic one. Otherwise, the tax rates already paid abroad cannot be offset in Germany, and the full inheritance tax must be paid. Please contact our legal team for further advice on such international inheritance cases.
Issues with Joint Wills
In international inheritance cases, difficulties can arise, in particular, if there is a joint will (also known as a spouse’s will). This is because the joint will is not recognised in some countries. To avoid such problems, a regulation was introduced that applies in almost all EU states. Persons who inherit abroad need documents that prove that they are entitled to dispose of the estate and provide information. The European Certificate of Succession is such a document. It is possible to apply for such a document in all EU states.
Support with Schlun & Elseven
At Schlun & Elseven Rechtsanwälte, our legal professionals will assist you with all matters relating to international inheritance cases, accessing bank accounts and with gaining the power of disposition. We are a multidisciplinary full-service law firm. With offices in Cologne, Aachen and Düsseldorf and conference rooms in Hamburg, Berlin, Stuttgart, Frankfurt and Munich, we are active throughout Germany. Our lawyers advise you in German, English and many other languages. Call us, send us an email or use our online form – we will be happy to give you an overview of your options as part of an initial assessment.