The German Certificate of Inheritance (Erbschein) for Heirs Living in the United States

The certificate is issued by the Nachlassgericht, the probate division of the local court, on the application of an heir. It states who the heirs are and in what shares, and nothing more. Sections 2365 and 2366 of the Civil Code attach a presumption that its contents are correct and protect a third party dealing in good faith with the person it names. That protection, rather than any grant of authority, is what a German bank is buying when it insists on seeing one.

The court’s role is correspondingly narrow: it takes custody of wills, opens them and notifies those concerned, issues the certificate, receives disclaimers, and appoints an administrator where needed. It does not supervise the settlement, approve distributions or call for an account. The corollary matters: nobody is watching, so the consequences of paying the wrong person, or distributing before the tax position is clear, fall on the heirs personally.

Where the deceased executed a will before a German notary, the will together with the court’s record of its opening is generally accepted by banks and the land registry in place of a certificate. That alone is a reason for a testator with German assets to use the notarial form rather than a handwritten one.

A power of attorney expressed to survive the death of the person who gave it does not lapse on death in case of doubt, under section 672 of the Civil Code, so the holder can deal with German banks immediately. It is often the single most useful document in the file, because it removes the months the certificate takes. It should be notarially certified, and for dealings with land it must be; the heirs can revoke it.

Where the estate is principally American and the German assets are a flat, an account or a holding of securities, a certificate covering the worldwide estate is more than the situation needs. Section 352c FamFG allows one restricted to the assets situated in Germany, and it is the instrument to ask for in most American estates with a German tail.

The application is made to the probate court for the district of the deceased’s last residence, or, for a limited certificate, to the court with jurisdiction over the German assets. The applicant must swear to the facts on which the succession depends, before a German consulate or a local notary with an apostille. Every link in the chain has to be evidenced by a civil status certificate, and documents in English generally require a certified translation. Assembling this material is usually the slow part, not the court.

Anyone holding a will must deliver it to the probate court as soon as the death becomes known. The duty under section 2259 of the Civil Code applies to custodians abroad, and withholding a will can constitute a criminal offence as well as a source of liability in damages. A will executed before a German notary, or deposited with a German court, is recorded in the central register kept by the Federal Chamber of Notaries, and the registry office notifies the register on every death. A will kept in a drawer is in no register and may never be found.

The certificate of inheritance is evidence, not authority, and it should be sought when evidence is what the situation requires. Where a notarial will or a power of attorney surviving death proves the same thing, they prove it faster; and where a certificate is genuinely needed in an estate whose centre of gravity is American, the certificate limited to the German assets is the one to ask for.