The opening of wills in Germany that are deposited abroad

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 his or her last habitual residence at the time of 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 basically determines in which state proceedings concerning the estate are to be conducted and, in general, court or notarial orders and decisions are to be made.

  1. Must all wills left by the testator 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 Whether a will has been validly drawn up or not, whether it has been revoked or not and the relationship between several wills cannot be clarified as part of the will opening procedure.

  1. 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 even become aware of the existence of these wills and to be able to open the wills, Section 2259 BGB 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 handed over to the probate court after the death of the testator. § Section 2259 para. 2 BGB stipulates that the probate court must arrange for delivery when it becomes aware of the will.

  1. Must wills that are located abroad also 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 EU Succession 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 regulating or formative effect for the entire estate (according to the Higher Regional Court of Frankfurt, decision of 26.05.2020 - 21 SV 2/20). Whether this can be followed is questionable against the background 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.

  1. Is the transmission of certified copies of a will located abroad sufficient for the opening?

In practice, the opening of wills that are located abroad can be problematic. Difficulties arise in particular if the wills were notarized abroad and the original is kept there by a court or a notary.

In principle, the probate court must always open the original of the will. For this reason, the original of a will that is not already in official custody must be delivered to the probate court 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 notarized to the probate court. Instead, the notary issues a copy. The copy is neither the original nor a certified copy, but a duplicate of the original. Copies are generally issued by the office where the deed 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 notarized. However, it is also hardly possible to obtain a copy from foreign notaries according to German understanding. Foreign notaries usually do not understand the difference between a certified copy and an authenticated copy and can hardly explain it. In addition, in many legal systems there is no procedure comparable to the German opening procedure. In Spain, for example, there is no opening of a will as defined by 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 inheritance certificate proceedings - that wills held 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 the 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 in his custody is always required.