What is a certificate of executorship?
If the testator has appointed an executor to handle the estate, the executor effectively becomes an executor by accepting the office. In order to be able to fulfil their duties, authorities or banks often require confirmation or proof of the executor's position. The certificate of executorship serves this purpose.
The certificate of executorship is the key document of authorization in the execution of a will. It identifies the executor as the authorized person in legal transactions and provides legal certainty to third parties. Without this certificate, proper administration of the estate is practically impossible in many cases, as credit institutions, land registries, and the testator's contractual partners regularly require formal proof of the executor's official position.
Where do I apply for the certificate of executorship?
Pursuant to Section 2368, sentence 1 of the German Civil Code (BGB), the probate court must issue a certificate of appointment upon request. The probate court with jurisdiction is generally the one at the deceased's last habitual residence at the time of death. This local jurisdiction is derived from Section 343 of the German Act on Proceedings in Family Matters and Matters of Non-Contentious Jurisdiction (FamFG). If the deceased had their last habitual residence abroad, international jurisdiction is governed by the provisions of the European Succession Regulation (EU Succession Regulation).
The application can be submitted in writing or declared orally for the record at the court office. In practice, the submission of the opened will and proof of acceptance of the appointment are regularly required. The probate court then examines the validity of the appointment of the executor and the applicant's identity.
Who is eligible to apply?
Only the executor of the will is entitled to apply for the certificate. If several executors have accepted the office, each is entitled to apply for the certificate. The heirs, however, are not entitled to apply, as the certificate of executorship serves solely to legitimize the executor and not to establish the heirs' status.
Eligibility to apply requires that the position has been effectively accepted. Prior to acceptance, there is no entitlement to the issuance of the certificate.
What is the content of the certificate of executorship?
The certificate of executorship is an official document that legitimizes the executor in legal transactions and establishes a basis of trust for third parties. It contains the name of the testator and the name of the executor. Furthermore, it lists the relevant testamentary provisions insofar as they are significant for the scope of the executor's powers.
It is particularly important to specify whether the executorship is for winding-up, administration, or ongoing administration of the estate. The certificate may also indicate whether the executor's powers are limited or if the testator has made any special instructions. This clearly documents the scope of the executor's authority to manage the estate.
What legal effect does the certificate of executorship have?
According to Section 2368, sentence 2 of the German Civil Code (BGB), the provisions regarding certificates of inheritance apply accordingly. This means that the presumption of correctness under Section 2365 of the German Civil Code (BGB) and the public faith pursuant to Sections 2366 and 2367 of the German Civil Code (BGB) apply to the certificate of executorship.
Third parties are generally entitled to rely on the fact that the person named in the certificate is indeed the executor of the will and authorized to act to the extent specified. Legal transactions undertaken in reliance on the accuracy of the certificate therefore enjoy special protection. This far-reaching legal effect underscores the considerable importance of the document for the administration of the estate.
What costs are incurred for the issue of an executor's certificate?
The fees are governed by the German Act on Court and Notary Fees (GNotKG). According to Section 40, Paragraph 5 of the GNotKG, the value of the matter is twenty percent of the value of the estate at the time of death. Liabilities of the estate are not deducted from this calculation.
The fees are therefore calculated based on the economic value of the estate. Larger estates can incur correspondingly higher costs. However, since the certificate is regularly a prerequisite for the proper administration of the estate, it is a necessary tool in practice.
What happens to the certificate after the execution of the will has ended?
Upon completion or termination of the executorship, the certificate of executorship becomes invalid pursuant to Section 2368 Sentence 3 of the German Civil Code (BGB). A separate court declaration of invalidity is not required. With the termination of the office, the certificate automatically loses its legal effect.
This means that the former executor is no longer authorized to act on behalf of the estate based on the certificate. Administration then passes to the heirs, unless a further executor has been appointed.
Conclusion regarding the certificate of executorship
The certificate of executorship is a key instrument for the practical execution of a will. It legitimizes the executor in legal transactions and creates legal certainty vis-à-vis banks, authorities, and contractual partners of the estate. Without this formal proof, the proper administration of the estate is often more difficult.
The certificate of executorship is issued exclusively upon application to the competent probate court. Only the appointed executor is entitled to apply – not the heirs or children of the deceased. The application procedure is governed by the statutory provisions of the German Civil Code (BGB) and the German Act on Proceedings in Family Matters and Matters of Non-Contentious Jurisdiction (FamFG).
Since the certificate has far-reaching legal consequences and establishes public trust, applying for it is of considerable importance. Especially in complex estates or when multiple executors have been appointed, the process should be carefully prepared. Timely application significantly facilitates the administration of the estate and prevents delays in the implementation of testamentary provisions.