What to do if several probate courts demand the original last will and testament
If a decedent owned assets in more than one country and has written a will which covers his or her global estate, there arises the practical problem that the executor(s) or the heirs(s) need to apply for respective national grants of probate in various countries (requirement for dual or triple probate proceedings).
In situations like these, the applicant should think carefully about the best order of these applications, i.e. where to apply first and what to do before original documents, especially the original will, but also other documents like birth or marriage certificates, divorce decrees etc. are submitted to the primary probate court.
Dual UK-German probate
Let’s look at a practical example which we as UK-German probate experts come across on a weekly basis: A British national has lived in Germany for a few years (e.g. as an expat) and therefore still owns German bank accounts and stocks, maybe even a small German apartment which is now rented out to a tenant. He then moved back to the UK where he also owns assets and where he eventually passes away having had his domicile and habitual residence in England at the time of his death. He has made a will in which he gives everything to his spouse. The will is not restricted to the UK but instead covers his global estate, i.e. the UK and Germany.
Dual probate necessary: Two separate grants of probate are required
In this simple case study, the UK banks, insurance companies etc. will request a UK grant of probate and the German banks will request a German certificate of inheritance (Erbschein) in order to release the assets of the deceased, because the UK does not recognise a German grant and vice versa.
This means that the surviving spouse will have to make separate and indepenedent probate applications in both countries (need for dual UK-German probate). How to apply for a German grant from the UK is explained here:
Applying for German Grant of Probate from the UK?
The surviving spouse will usually apply for the grant in the country of domicile first, i.e. in England, although that sequence is not a must. There may be circumstances where applying for the grant in the non-domicile country first may have advantages.
However, in most cases, the more important assets are in the country of domicile, so the first application is usually made there. When someone applies for UK probate, HMCTS requests the original will to be submitted to the probate registry. It will remain lodged with HMCTS and become a public record. For details see here.
Now, the practical problem is this: If someone applies for a German grant of probate (Erbschein) based on a will (not on intestacy), then the German probate court ALSO wants to be presented with the ORIGINAL will and they will also want to keep that original on their court files, i.e. the original will is lodged permanently with the probate court.
The only exception and valid excuse for the probate applicant NOT to submit the original will to German probate court is when that original must be submitted to another court which takes priority, i.e. the probate court where the decedent had their domicile / habitual residence (in the above case example: England).
German probate court requests a UK court certified copy
However, in that case, the German court then demands to be presented with an official copy of that will which has been certified by the English court. A copy of the will which was merely certified by an English solicitor is NOT ACCEPTED by German probate courts. This often leads to misunderstandings, hurt pride of English solicitors and eventually severe delays, because the applicant (here the spouse) often submits the original will to HMCTS without requesting a court (!) certified copy right away. Asking the court for an official copy later (which also must be apostilled by the way) is usually answered by HMCTS only after many months.
Alternative solutions to avoid delay of probate
In cases where the testator knows that his personal representative / heir will have to apply for probate in more than one country, the obvious simple solution is to create more than one original, by either making one will for the UK and another will for Germany, or by creating two identical original wills if the testator wishes to make one single will for his global estate.
Another estate planning tool for Germany, which may enable the heirs to avoid German probate altogether, is the so called “transmortal power of attorney“. This legal concept does not exist in common law jurisdictions but is quite often used in civil law jurisdictions like Germany. It means that someone (the testator) grants someone power of attorney (POA) to access for example German bank accounts and explicitly states in the POA document that said authority shall remain valid even after the testator has died. In that case, the person who has been granted such “transmortal power of attorney” is able to access the bank accounts without the need for a German grant of probate. Mind however that German inheritance rules still apply and the bank, if they have learned about the death of their client, may refuse to release the monies until the authorised person can present a tax clearance letter from the German tax office. Details on the German inheritance tax clearance certificate in the post below. Still, a transmortal POA may still be useful because it spares the executor / heir having to apply for German probate.
German Tax Clearance Certificate (Inheritance Tax)
If the testator did neither grant a transmortal POA nor create two (or more) originals before he passed away, then one last “Hail Mary option” worth trying is to have an English scrivener notary make a certified and apostilled copy of the original will before the original is submitted to HMCTS for the English grant. Such a scrivener notary certified will is sometimes accepted by the German court of probate, although there is no guarantee for this. The German probate court may still come back with a query “please provide a UK court (!) certified and apostilled copy”. In this case there is no other way than asking HMCTS to provide such official copy.
Countries who have accepted the EU Succession regulation
Matters are different and significantly simpler if the decedent (testator) had assets exclusively in countries where the EU Succession regulation applies (i.e. all EU member states except for Ireland and Denmark) and if he had his habitual residence in such a country at the time of death. In that scenario, the heirs can (and must) apply for one single EU grant (EU Nachlasszeugnis) in the country where the decedent had his habitual residence (say Germany) and this single grant is then also valid in France, Spain, Italy, Austria etc. But not in the UK, Ireland, Channel Islands, Isle of Man, USA etc.
For more on probate and inheritance tax in Germany see this post:
How to obtain probate and administer an estate in Germany
The law firm Graf & Partners and its German-English litigation department was established in 2003 and has 20+ years of experience with British-German and US-German probate matters, including the representation of clients in contentious probate matters. If you wish us to advise or represent you in a German or cross border inheritance case please contact German expert lawyer Bernhard Schmeilzl, LL.M. (Leicester) at +49 941 463 7070.