Wills in Germany
Key information to understand the various types of German will available, and how to go about making one...
The Probate court or Surrogate's court (Nachlassgericht), a division of the local municipal court (Amtsgericht), holds jurisdiction over wills and inheritance in Germany. In the event of an estate involving assets in two or more countries, German "conflict of law" rules stipulate that jurisdiction of an international estate is established by the laws of the country of citizenship of the deceased at the moment of death.
In Germany there is no legal requirement to possess a last will or testamentary will (Testament) which has been officially witnessed by a legal body. However to avoid confusion in the passing on of property, it may be advisable to make a will for those people who:
- possess a large fortune or own property
- want to legally secure their property for descendants
- live together with a partner but are not legally married
- have more than one child and want to specify what each child will inherit
- have children from different marriages or out of wedlock
- have beneficiaries who have debts
Without a will, property will be inherited by the decedent's legal heirs. German law defines the legal line of succession with regards to inheritance as being the spouse and the next of kin.
Next of kin is defined and ranked in the following order:
- spouse and children of the decedent
- nephews and nieces
Should none of these heirs be found, the next of kin is the offspring or next of kin of the grandparents of the deceased.
The different types of will in Germany
The various forms that a will can take are set out in the German civil code (Bürgerliche Gesetzbuch, BGB); there are basically two types.
- A public will (Öffentliches Testament) also known as a notarial will (notarielles Testament) which is prepared and sworn to in front of a Notary
- A holographic, or a handwritten will (eigenhändiges Testament), in which case the deceased's signature is legally binding
The public or notarial will
The notarial or public will is handed over in written form for the safekeeping by a public notary. In this form, there is no legally binding requirement for the will to be physically written by the deceased. The public notary may therefore be engaged to compose the wording of the will. The oral transmission of a will to a public notary is not valid. The public notary is required to confirm to the person issuing the will that the will is unambiguous and legally correct. The disadvantage of a public will is the financial cost involved. This cost depends on the size of the estate and amount of assets of the deceased.
The holographic or handwritten will
The holographic or handwritten will (Eigenhändiges Testament) must be completed with a signature, including the time and place of writin, in the handwriting of the will's author. A signed machine-generated statement is invalid. A will may be written in any language. The German federal notary chamber (Bundesnotarkammer) advises against handwritten wills because of the potential problems that can arise. Confusion in the bequeathing of the decedent's property can occur, for example, because the will's author used imprecise phrasing or unknowingly bequeathed property illegally.
- For more information on the advantages and disadvantages of the different types of wills, see the Federal Chamber of Notaries website (in German)
Depending on the type of will involved, the maker of the will can either write the will in his own handwriting and sign it or have a notary draw up the document for a fee. If the maker of the will creates the will alone, it is advisable to check the legality of the clauses by hiring a lawyer or notary.
If a notarial or public will is preferred, then it is necessary to find a notary. A notary in Germany is registered by the state and has been trained in law. Notaries are therefore usually lawyers or judges and all are registered at the Federal Notary Chamber (Bundesnotarkammer). The Federal Notary Chamber is a governmental institution, and thus can be relied on to be capable and impartial when referring a notary.
To find a notary:
- the yellow pages
- the Federal Notary Chamber website
- Further information on German Civil Law Notaries can be found at the Bundesnotarkammer website
- German Chamber of Notary Publics
- European e-Justice Portal - site explaining EU and German law concerning wills and succession