Who does the curator of the estate represent?
If the heirs are not known and there is an interest in securing the estate, the probate court can appoint a guardian of the estate. Pursuant to Section 1960 (1) BGB, the probate court must ensure that the estate is secured until the inheritance is accepted if there is a need to do so. The same applies if the heir is unknown or if it is uncertain whether he or she has accepted the inheritance. The guardian of the estate to be appointed by the probate court in accordance with Section 1960 para. 2 BGB is the legal representative of the heir. In this capacity, and not as a representative of the estate or as a fiduciary official, he or she must fulfil his or her main task of securing and preserving the estate for the actual heir with, in principle, unlimited power of representation and power of disposal. In this context, the estate administrator must preserve and administer the estate and safeguard the financial interests of the heirs yet to be determined.
When are heirs unknown or when is there a need for security?
There is a reason to secure an inheritance if the heir is unknown to the probate court or the known heir has not yet accepted the inheritance. It is sufficient if the court has not insignificant doubts about the heir's status or the declaration of acceptance. An heir is unknown if there is more than insignificant doubt about his or her existence or identity. The assessment of whether the heir is unknown must be based on the position of the probate court when deciding on the ordering of protective measures. If the court cannot ascertain who of several possible persons has become an heir without extensive investigations, the heir is deemed to be unknown. This also applies if the amount of the inheritance is unclear.
A need for security exists if the existence of the estate is jeopardised without appropriate security measures by the probate court. This is the case, for example, if the estate includes a residential property for which regular payments must be made to avoid legal disadvantages and there are concerns that unjustified enforcement measures will be taken against the estate on a large scale. However, there is no need for security if reliable administration of the estate by the provisional heir, co-heirs or relatives of the deceased is guaranteed.
Can a guardian of the estate also be appointed if only some heirs are unknown but other heirs are known?
Yes, even if there are several heirs, only some of whom are known, but others are not, it is possible to appoint a curator of the estate for the unknown heirs. The probate court must then make a decision on a partial guardianship of the estate. The curator of the estate then only represents the unknown heirs and not the heirs who are already known.
In particular, if there are only heirs of more distant orders, there may be known heirs on the one hand whose (minimum) inheritance quotas are fixed and other heirs on the other hand who are not (yet) known. If, for example, the relatives of the third order on the father's side are known, it is clear that the inheritance shares of these relatives together make up at least ½ of the inheritance. A partial certificate of inheritance would then have to be applied for for these known heirs, in which the inheritance shares of these heirs would be shown and together amount to ½.
However, if the relatives of the third order on the mother's side are unknown, a partial guardianship of the estate would have to be ordered for them, and only for them. It should therefore be noted that - insofar as a majority of heirs are considered - it must be examined separately for each inheritance share and each possible heir whether the requirements for guardianship of the estate are met. If only individual heirs are unknown, no general guardianship can be ordered. In this case, only partial guardianship for the unknown heir can be considered
What legal remedy is available if the order for guardianship of the estate was incorrect?
Pursuant to section 3 no. 2 lit. c) RPflG, the order for guardianship of the estate is a decision of the judicial officer. Pursuant to Section 11 (1) RPflG, an appeal against this decision is admissible in accordance with the general procedural provisions. The court has made a decision by way of an order, which constitutes a final decision in accordance with § 38 Para. 1 FamFG. The appeal is therefore admissible in accordance with §§ 58 et seq. FamFG. A specific application is not required as part of the appeal. However, it must be possible to infer from the appeal submission, if interpreted favourably, what is being sought with the appeal. In particular, it should be recognisable whether the order is being contested in full or only in part. It should be noted that an order granting the heir's application to order the administration of the estate cannot be contested, cf. section 359 para. 1 FamFG.
Can the certificate of appointment of the curator of the estate be withdrawn?
There is no provision corresponding to Section 353 FamFG that regulates the cancellation of the certificate of appointment of the curator of the estate. If an appeal against the appointment decision is successful, the appointment of the curator of the estate is cancelled. The curator of the estate must then return the appointment himself.
Can a guardian of the estate disclaim the inheritance for the unknown heirs?
In particular, the curator of the estate is not authorised to accept or reject the inheritance on behalf of the unknown heirs. The fact that the curator of the estate, as the representative of the unknown heirs, may not influence their status as heirs by accepting or rejecting the inheritance is also directly expressed in the wording of Section 1960 BGB, according to which the probate court must take the necessary measures to secure the estate „until the inheritance is accepted“ and may appoint a curator (curator of the estate) for the person who becomes the heir. The right to waive the inheritance is a right to which the heir alone is entitled.
Can a guardian of the estate disclaim an inheritance of the deceased that has fallen into the estate (so-called sub-estate)?
It is not uncommon for the estate to include an inheritance that was received by the deceased before their own death. If a guardian has been appointed for the estate, e.g. because the heirs are unknown, the question arises as to whether the guardian of the estate can disclaim the inheritance that has been included in the deceased's estate if the deceased himself had not yet accepted the inheritance and the deceased died before the disclaimer period had expired. A waiver of this other inheritance included in the estate could, for example, make economic sense if this sub-estate is over-indebted. The renunciation of the inheritance included in the estate also has nothing to do with the existence of the main inheritance for which the estate administrator was appointed in the first place. Nevertheless, the highest court has ruled that the curator of the estate cannot disclaim an inheritance that has become part of the estate on behalf of the heirs. This right, too, can only be exercised by the (heirs') heirs. Pursuant to Section 1952 (1) BGB, the right of the heir to waive the inheritance is heritable. If the heir dies before the expiry of the deadline for waiver, the deadline does not end before the expiry of the deadline for waiver prescribed for the heir's inheritance (Section 1952 para. 2 BGB). The deadline for the heir to disclaim the sub-estate therefore ends, even if it had already begun to run for the deceased heir, at the earliest at the end of the deadline for disclaiming the main estate.