Submitting the German Probate Application to the wrong court will cause months of delay
If the deceased had owned assets in Germany, you will need to apply for a separate German grant. Grants issued by a British probate registry or a United States probate court are useless in Germany. As we have explained in our post “How to apply for a German Grant of Probate”, German institutions (land registry, banks, insurance companies etc) as well as debtors of the deceased will request to see a German Erbschein (certificate of inheritance) as evidence that the person named therein (the heir) is indeed entitled to receive the assets located in Germany.
Which German Probate Court has Jurisdiction?
In contrast to England, under German probate procedure rules, the grant can only be issued by one specific court. The case will thus only be dealt with if the application has been sent to the correct probate registry. According to sec. 2353 of the German Civil Code:
“The probate court must issue to the heir on application a certificate concerning his right of succession, and, if he is entitled only to a share of the inheritance, concerning the size of his share (certificate of inheritance).”
But which of the 638 German probate courts (see here) is the right one? Especially if the deceased was not domiciled in Germany but had assets there, maybe even in more than one German state.
The probate court is a special division of the district court (Amtsgericht). Pursuant to sec. 343 para 1 of the Act on Proceedings in Family Matters and in Matters of Non-contentious Jurisdiction (FamFG) the German court in the circuit where the deceased had his last habitual residence has jurisdiction for probate matters. If the deceased, however, was not resident in Germany at the time of his or her death, the jurisdiction depends on the last residence of the deceased before he or she left Germany.
German Grants in case of non-German Residents
Please note that a recent court ruling has changed the standard practice of German probate courts if the deceased had never himself been resident in Germany. If the deceased had neither a domicile nor a place of residence in Germany, the central probate court in Berlin-Schöneberg now has exclusive jurisdiction for probate matters. In contrast to the prior legal practice in German probate matters, the location of a German property (real estate) is no longer relevant. So if the deceased had owned a German holiday home or had owned German property purely as an investment (i.e. leased out to non family mambers), such property does no longer create jurisdiction of the local probate court. The Higher Regional Court (Oberlandesgericht) Munich explicitly ruled on 12 April 2018 (for judgment see here), that only the central probate registry in Berlin-Schöneberg has jurisdiction in these cases.
For more information on German-British probate matters and international will preparation see the below posts by the international succession law experts of Graf & Partners LLP:
- Most Germans die without a Will (German Intestacy Rules)
- Formal Requirements to set up a valid Will in England, Scotland and Germany: What are the Differences?
- The Perils of German IHT and Gift Tax
- Basics of German Inheritance and Succession Law
- Executors and Trustees in German Inheritance Law
- How to apply for a German Grant of Probate
- The Infamous German Community of Heirs – And how to avoid it
- Germans Heirs are Personally Liable for Debts of the Deceased
- International Wills and Estate Planning for British-German Families
- Prove German Wills for English Probate
- Disputed Wills and Contentious Probate in Germany
- Disinherit your no-good children? Not so easy in Germany
- Can foreign Taxes be set off against UK Inheritance Tax?
The law firm Graf & Partners and its German-English litigation department GP Chambers was established in 2003 and has many 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 solicitor Bernhard Schmeilzl, LL.M. (Leicester) at +49 941 463 7070.