The question often arises as to how to deal with a will that was not drawn up in the country in which the testator had their last habitual residence at the time of their death. It will therefore be explained what options are available to the beneficiaries in such cases and how to deal with „foreign“ wills.
The last habitual residence is important because, according to Art. 4 of the European Succession Regulation (EuErbVO), it generally determines the state in which proceedings concerning the estate are to be conducted and in which court or notarial orders and decisions are to be made.
- Are all wills left by the testator to be opened?
If the German courts have jurisdiction in an inheritance case, „the inheritance case“ usually begins with the opening of the testamentary dispositions made by the testator in wills or inheritance contracts. It is often the case that the testator has not only made a single will, but several wills in the course of their life. - Usually with a certain time interval between them. Regardless of when the individual wills were drawn up and regardless of their content, all wills that exist at the time of death must be opened by the probate court. The probate court therefore does not only open the last will at the time of death. Even if a will was expressly revoked in a later will, this revoked will must still be opened. Whether a will has been validly drawn up or not, whether it has been revoked or not and the relationship between several wills cannot be clarified as part of the will opening procedure.
- Are wills opened automatically by the probate court?
The probate court does not automatically open the testamentary dispositions made by the testator in wills or inheritance contracts in the event of death. Neither the doctor who certifies the death nor the registry office automatically notifies the respective probate court. Even if the court is informed of a death, the testamentary dispositions are not automatically opened. If the wills have not been deposited, the court is not even aware of their existence. At least under German law, depositing wills is not a prerequisite for their validity. In many cases, wills are kept at home or given to family members for safekeeping - even if this is not recommended due to the risk of loss.
In order for the probate court to become aware of the existence of these wills and to be able to open the wills, Section 2259 of the German Civil Code stipulates that the person in possession of a will is obliged to hand it over to the probate court immediately after becoming aware of the testator's death. If the will is in court custody, this obligation does not apply. If a will is in the official custody of an authority other than a court, it must also be delivered to the probate court after the death of the testator. § Section 2259 para. 2 of the German Civil Code stipulates that the probate court must arrange for delivery when it becomes aware of the will.
- Are wills that are located abroad also to be opened by the German probate court?
The jurisdiction arising from the European Succession Regulation (EuErbVO) is very broad in terms of content. Jurisdiction under Art. 4 of the Regulation extends in principle to all decisions in matters of succession for the entire estate. „Judgment“ means any judgment given by a court of a Member State in a succession matter, irrespective of its name.
This suggests that if a German probate court has overall jurisdiction under the EU Succession Regulation, this jurisdiction also extends to the proceedings for the opening of wills. Some argue that the jurisdiction rules of the EU Succession Regulation do not apply to the opening of wills. It is an actual procedural process without a regulatory or formative effect for the entire estate (according to the Higher Regional Court of Frankfurt, decision of 26 May 2020 - 21 SV 2/20). Whether this can be followed is questionable in view of the broad definition of the term "decision" in the EU Succession Regulation and also the considerable legal effects that are set in motion by an opening under German inheritance law.
- Is the transmission of certified copies of a will located abroad sufficient for opening?
In practice, the opening of wills that are located abroad can be problematic. Difficulties arise in particular if the wills were notarised abroad and the original is kept there by a court or notary.
In principle, the probate court must always open the original of the will. For this reason, a will that is not already in the original in official custody must be delivered to the probate court in the original by the person in possession of it. However, if it is a will drawn up by a German notary, even German notaries do not hand over the original of the will they have notarised to the probate court. Instead, the notary issues a copy. With the Copyis neither the original nor a certified copy, but a duplicate of the original. Copies are generally issued by the office where the document is kept, in accordance with § 48 BeurkG. In the case of a notary, the original remains in his collection of documents. Just like German notaries, foreign notaries will generally refuse to hand over the original of the will they have notarised. However, it is also hardly possible to obtain a copy from foreign notaries in accordance with German understanding. Foreign notaries are unaware of the distinction between certified copy and Copy usually incomprehensible and difficult to explain. In addition, in many legal systems there is no procedure comparable to the German opening procedure. In Spain, for example, there is no will opening procedure in the sense of German law. In Spain, the certifying notary who keeps the original will usually only issues a certified copy (copia autorizada).
Despite the difficulties, many probate courts in Germany require - at least in the context of an inheritance certificate procedure - that wills held in safekeeping abroad are also submitted in the original so that they can be opened in Germany first. As a rule, the probate court in Germany learns of the wills held in safekeeping abroad at the latest in the course of the procedure for issuing the certificate of inheritance, because the applicant must state in the application whether he or she is aware of (further) testamentary dispositions and must also affirm this information in lieu of an oath. The applicant in the inheritance certificate procedure must therefore also state any wills located abroad of which he/she is aware.
Whether the transmission of certified copies of a will located abroad is sufficient for opening if no document comparable to the German copy can be obtained has not yet been clarified by the courts. In this case, precise coordination with the probate court and careful wording of the request to the notary or the court abroad to transmit the will held by them is always required.