According to German law, the estate located in Germany of a decedent underlies the principle of 'universal succession,' meaning that the heirs become owners of the decedent's estate upon his death. The succession is determined either by law or by disposition in contemplation of death. (The executor or trustee of an estate, as envisioned in Anglo-American law, is basically unknown to German law)
However, heirs have to prove their title of succession by a Certificate of Inheritance ("Erbschein") which is required for the heir(s) to dispose of real estate or bank assets. It is issued by a German surrogate's court ("Nachlassgericht"). This court is usually located at the last residence of the decedent or, if he had no residence in Germany, it is determined by the location of assets of the estate.
For the issuance of the Erbschein, it is mandatory that at least one of the heirs - under special circumstances also the executor or the trustee as named in an Anglo-American will - applies for the certificate by giving an affidavit/declaration in lieu of oath. This application may be filed with the Nachlassgericht directly (if there are heirs in Germany), a German "Notar" (notary) or through the German Missions abroad. The applicant usually applies in the name and on behalf of all heirs. He/she does not need a power of attorney to apply in their names.
Declaration of Renouncement of Succession
According to German law the heirs can declare the renouncement of succession to the German Surrogate's Court within six weeks, if the heirs are outside of Germany within six months after receiving knowledge about the case of succession. The signatures on the declaration will, as a minimum requirement of form, have to be certified (signature certification). Both parents (one if it is a case of sole custody) of minor children, have to declare the renouncement of succession on the children’s behalf. The declaration of renouncement may be executed before the consular officer at the competent German Mission or a honorary consul.
How to obtain a Certificate of Heirship
1. The applicant has to provide all information necessary in advance, to enable the German Missions to draft a formal application. Therefore, please use the prepared questionnaire. We recommend that you enclose copies of all documents proving the right to inherit (e. g. last will, letters testamentary, death certificates, birth certificates, marriage certificates etc.)
2. The German Mission will prepare the application document and contact the applicant as soon as the application is drafted to set up an appointment for the applicant to appear at the German Mission and to sign the document in due form. As German is the official language in Germany, the text of the application will be put forward only in German. If the applicant does not understand German, the consular agent will explain the contents of the paper to the applicant and translate it orally. If he/she wants to have an English translation of the application, the applicant will be responsible for all costs incurred by a translation. We recommend that the applicant shows all the original documents of which copies were provided with the questionnaire during this appointment. The German Mission will notarize the copies, so the Nachlassgericht in Germany receives a complete application with the pertinent documents enclosed.
3. The applicant will receive the original and a first certified copy of the application. One of them has to be sent to the competent Nachlassgericht or the applicant's representative in Germany who will then forward it to the Nachlassgericht.
4. After having received the application, the Nachlassgericht will issue the Erbschein and forward it to the person named as recipient in the application.
In the course of the application, two fees will apply:
The German Mission will charge a fee for the preparation of the application including the affidavit. The fee is payable in cash (equivalent in US-$ according to the daily exchange rate) or by internationally accepted credit card (card will be charged in Euro, additional charges by the credit card company may apply).
Fees are based on the value of the estate. The applicant is required to provide detailed information about the value of the estate in Germany. (Please contact the land register ('Grundbuchamt') in Germany or your lawyer for further details of the value of real property.)