International Inheritance Law in Germany – When Does German Law Apply?

A cross-border estate case arises whenever an estate has connecting factors to more than one country. This is typically the case when the deceased was not living in their home country at the time of death, or when their assets were spread across multiple jurisdictions. Situations of this kind are no longer unusual in an increasingly mobile and internationally connected world. The cross-border dimension of an estate directly affects questions of jurisdiction: in principle, both the courts of the deceased’s home country and the courts of their last place of residence or habitual residence may have authority over the matter. Which court has jurisdiction depends on the applicable international rules.

The question of which substantive law governs the estate is equally complex. Depending on the circumstances, the law of the country where the deceased was last habitually resident, the country of their nationality, or the country where their real property is located may all be relevant. In the case of immovable property in particular, a so-called splitting of the estate can arise in certain situations: movable and immovable assets are then governed by different legal systems — a constellation that can easily create legal uncertainty without proper advice.

Since August 17, 2015, the European Succession Regulation (EU Succession Regulation / EU-ErbVO) has applied in almost all EU member states — with the exception of Ireland and Denmark. It establishes a unified legal framework for estates with a cross-border dimension and is the central instrument of international inheritance law within Europe. Its scope covers all situations in which an estate extends beyond the borders of a single state, for example where a German national was last resident abroad, or where the estate includes assets located in different countries.

The EU Succession Regulation pursues a clear objective: cross-border estate cases should be handled according to the principle of “one estate, one court, one law.” The aim is to make estate planning simpler for testators and to streamline the administration process for heirs. To this end, the Regulation addresses three key questions:

• which national inheritance law applies to the estate,
• which court has international jurisdiction, and
• what role the European Certificate of Succession plays.

The most far-reaching change concerns the applicable law. Since the Regulation came into force, it is no longer the law of the deceased’s home country that governs as a default, but rather the law of the country where the deceased was last habitually resident. The principle of unity of the estate applies: the Regulation determines a single applicable law for the entire estate, regardless of whether the assets are movable or immovable. It should be noted, however, that the substantive inheritance law of the individual member states and their respective inheritance tax regimes are not affected by the EU Succession Regulation.

The EU Succession Regulation allows testators to designate the law applicable to their estate — the so-called choice of law under Article 22 EU-ErbVO. This is particularly relevant for individuals who are habitually resident abroad but prefer the inheritance law of their home country to apply. Through this mechanism, it is possible to ensure that the law of the country of nationality governs the estate rather than the law of the last country of residence.

The choice of law must be made expressly in a testamentary disposition. The only law that may be chosen is the law of a country whose nationality the testator holds at the time of the choice or at the time of death. A testator with multiple nationalities may freely choose the law of any of those countries, in accordance with Article 22(1) sentence 2 EU-ErbVO. Once made, the choice of law covers the entire estate — a partial choice of law limited to specific assets is not possible.

In legal dealings, heirs frequently need to establish their status to third parties — for example, to be registered as new owners in the land register, to access bank assets forming part of the estate, or to enforce claims of the deceased. Two instruments are available for this purpose:

• The German certificate of inheritance (Erbschein) — a purely domestic document with no time limit
• The European Certificate of Succession (ECS) — designed specifically for cross-border estate cases and recognized in almost all EU member states

The ECS offers a significant practical advantage over the German certificate of inheritance in international estate cases: it can be used directly in other EU countries without an apostille or certified translation. An ECS issued by a German probate court can, for example, be used directly in Spain to deal with estate matters there. In practice, foreign authorities sometimes still require a partial translation, so checking with the relevant local authorities in advance is advisable. It should also be noted that certified copies of the ECS are valid for six months only.

As a general rule, the German probate court has jurisdiction when the deceased was habitually resident in Germany and died after August 17, 2015 — regardless of their nationality. Both documents are issued on application only. Any member of a community of heirs is entitled to apply. The application can be submitted in the following ways:

• directly to the competent probate court,
• through a German notary or a German diplomatic mission abroad, in which case a sworn affidavit must be notarized.

Schlun & Elseven Rechtsanwälte assists heirs throughout the entire process — from the initial assessment to the final enforcement of their rights in Germany and abroad. This begins with establishing which law governs the estate, since the applicable legal system has a direct bearing on which probate court has jurisdiction and which document is most appropriate. On that basis, we prepare all required documentation and, where necessary, coordinate with foreign authorities and notaries — so that heirs remain able to act, wherever in the world the estate needs to be administered.

Under German inheritance law, certain close relatives — in particular the children and spouse of the deceased — are entitled to a compulsory share (Pflichtteil) that cannot, as a rule, be removed by will. The Pflichtteil amounts to half of the statutory inheritance share and represents a monetary claim against the heirs. German law affords particularly strong protection in this regard: the compulsory share is treated as an indispensable minimum entitlement and can only be withdrawn in a narrow set of circumstances defined by statute.

Not all legal systems recognize a compulsory share in the form it takes under German law. In some countries, compulsory share entitlements can be substantially reduced or even entirely excluded by will or other testamentary disposition. These differences can give rise to serious conflicts in cross-border estate cases — particularly where heirs and those entitled to a compulsory share are based in different countries, or where the estate is distributed across multiple jurisdictions.

Added to this is the fact that the recognition and enforcement of foreign estate decisions can involve significant practical hurdles. Under the EU Succession Regulation, the law applicable to the compulsory share is generally the law of the country where the deceased was last habitually resident. Those entitled to a compulsory share should therefore seek early legal advice on whether, and to what extent, their claims are enforceable under the applicable law.

When the estate includes real property located abroad, the administration of the estate can become considerably more complex. While the EU Succession Regulation aims to apply a single law to the entire estate under the principle of unity, some countries continue to apply their own domestic law to real property situated within their territory. This can result in a splitting of the estate: movable and immovable assets are then governed by different legal systems.

For heirs, this may mean having to take action simultaneously in multiple countries, each with its own procedural rules, jurisdictional requirements, and formal conditions. Early involvement of an experienced executor and specialist legal counsel in each of the countries concerned is essential in these situations.