If the deceased died abroad, the heirs face a number of difficulties. One difficulty is that the International jurisdiction for decisions in matters of succession in accordance with Art. 4 of the EU Succession Regulation is generally based on the last habitual residence of the deceased. In principle, this also refers to jurisdiction for the receipt of declarations on the acceptance and waiver of inheritances. Therefore, if there were no special provision, heirs would always have to submit a corresponding declaration to foreign courts and possibly, depending on the respective national requirements, also appear in person.
Acceptance and waiver in accordance with Art. 13 EU Succession Regulation
Art. 13 of the EU Succession Regulation therefore provides that heirs may also declare the acceptance or waiver of an inheritance before the courts of the state of their own habitual residence. Heirs living in Germany can therefore also accept or waive an inheritance in Germany.
Whether the declarations are to be submitted in writing or in another form is determined by the regulations of the state in which the heir lives, Art. 28 lit. b EuErbVO. In Germany, the waiver is made by simple declaration to the probate court - the waiver can also be made orally (Section 1945 I BGB).
Explanation of the procedure using an example
The following example case is (modified) to a Decision of the OLG Düsseldorf of 26 October 2018 and is intended to illustrate the problems and their solutions.
The testator died on 17 August 2020 with his last place of residence in Spain. The sole heiress became aware of the inheritance on the same day and sent a notarised declaration of renunciation of the inheritance to the local courts of the cities of R and L. The testator lived in the district of the court in the city of R before moving to Spain in 2010. The sole heiress lives in the district of the court in the city of L. Subsequently, both courts declared that they had no jurisdiction. The court of the city of R based its decision on the assumption that since the deceased died in Spain, the declaration had to be sent to a Spanish authority.
The Local Court L also declared that since the testator had neither domicile nor residence in Germany at the time of the inheritance, it did not have jurisdiction. The jurisdiction of the courts had to be determined by the Düsseldorf Higher Regional Court.
Problem of local jurisdiction
As stated above, Art. 13 of the EU Succession Regulation governs international jurisdiction for the acceptance of declarations. Which court has local jurisdiction is determined by the respective national procedural law.
German law regulates the question in § 31 S. 1 IntErbRVG. The probate court in whose district the person making the declaration has their habitual residence has local jurisdiction. As the habitual residence of the parties is in the district of the Local Court of the city of L, the Higher Regional Court of Düsseldorf declares this court to have jurisdiction.
The AG from the city of L now accepts the declaration. The sole heiress considers the case closed for her, after all, she has renounced her inheritance and has not become an heir. When she receives a letter from the Spanish authorities on 20 October 2020 asking her to declare whether she accepts the inheritance, she is completely flabbergasted. She thought the German court would pass on her renunciation independently. Now she is worried about missing any deadlines.
Transmission problem
In the facts of the case in the decision of the Higher Regional Court of Düsseldorf, the AG of the city of L argued that its obligation to take receipt was limited solely to the recording of the minutes. The Düsseldorf Higher Regional Court countered this with the view that a declaration to the court with jurisdiction under Art. 13 of the EU Succession Regulation would replace a declaration to the court with international jurisdiction. However, this does not imply an obligation to transmit, which also corresponds to the recitals of the European legislator. The sole heir was responsible for the transmission. For this purpose, however, the court of the city of L should have granted the sole heir pursuant to § 31 S. 3 Hs. 1 IntErbRVG the The original of the minutes or the original of the declaration in a publicly notarised form, so that it can forward the original to the competent foreign office. In addition, the Place and date of receipt noted (Section 31 sentence 3 half-sentence 2 IntErbRVG ) in order to enable the sole heir to provide evidence to the competent authority abroad in this respect as well.
Problem of meeting deadlines
With regard to meeting the deadline, it must unfortunately be said that the Legal situation still unclear is. If, like the Düsseldorf Higher Regional Court, one assumes that a declaration in accordance with Art. 13 of the EU Succession Regulation replaces the declaration to the foreign court, then this would also apply to the deadline. A declaration to the domestic court that complies with the time limit would therefore also comply with the time limit abroad, even if the foreign court receives it late. To prove compliance with the deadline, the note pursuant to Section 31 S. 3 Hs. 2 IntErbRVG is necessary to prove compliance with the deadline. It is therefore essential to pay attention to this.
However, this result could be contradicted by recital 32 p. 3 of the EU Succession Regulation, according to which the declaring persons are the court or authority before which the matter is or will be brought, „within the period provided for in the inheritance statute“ of the declaration themselves. In our case, the sole heir would then have to inform the competent Spanish authority of the renunciation within the deadline.
Conclusion
However, a final clarification of this question requires a decision by the ECJ. It therefore remains to be stated at this point that Legal certainty only with your own forwarding of the declaration within the deadline can be achieved. It is obvious that this requires knowledge of foreign substantive and procedural law. For this reason, we work closely with European partners in the interests of our clients.