German probate registry “announces” the content of the grant to be issued
The standard German grant is called Erbschein, i.e. certificate of inheritance. In contrast to grants in common law jurisdictions, such an Erbschein does not name executors or administrators. Instead, the german Erbschein specifies the “heirs”, i.e. the beneficiaries and – if more than one – their respective shares in the German estate. How to apply for a German grant of probate is explained in this post:
How to apply for a German Grant of Probate
What is a “Vorbescheid”?
In contentious probate cases, the German probate court (Nachlassgericht) sometimes uses the tool of the Vorbescheid, i.e. “pre-grant”. This is a court order in which the probate judge gives formal notice to all parties involved which kind of Erbschein the court intends to issue. If, for instance, the parties are in dispute about whether a will is valid or not (legal capacity, forged handwriting, unclear dates of various contradicting wills etc.) then the court gives everyone a chance to write to the court to present their arguments. Then the court issues the pre-grant, i.e. informs all parties that it intends to issue the Erbschein in favour of party A and sets a deadline (usually about four weeks) for party B to formally object to such grant being issued. The reason for the pre-grant is to avoid that a German Erbschein is issued which later proves to be incorrect. Because once the beneficiary is in possession of a grant (Erbschein), the beneficiary can close bank accounts, sell German property etc. This may cause damages which cannot be remedied later.
If party B chalenges the pre-grant, the court will often set a date for a formal hearing and investigate deeper by hearing witnesses, obtaining expert opinions etc.
Probate costs consequences
Pre-grants should, however, not be challenged recklessly, because the most important consequence of challenging a pre-grant is that the party who challenges the preliminary opinion of the probate court then bears the cost risk. Up until then, the person(s) who have applied for the Erbschein bear the probate court fees. If the pre-grant (and thus the application) is formally challenged, then the party raising the objections bears the risk of the additional court and lawyer fees. Depending on the value of the estate, these can be very significant.
More on contentious probate in Germany
Information on how to challenge a will in Germany is available here:
https://www.germancivilprocedure.com/probate-litigation-in-germany-how-to-challenge-a-will/
Graf & Partners specialise in UK-German probate, estate administration and international inheritance tax since 2003
German probate lawyer Bernhard Schmeilzl, co-founder of Graf & Partners in 2003, is a leading expert in international inheritance matters, especially UK-German probate and estate administration. Over the 20+ years, he and his team have dealt with thousands of German probate applications, including contentious probate cases.
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