German inheritance law does not recognise an estate without heirs. According to kinship inheritance law, there is actually always one person who is entitled to inherit according to the statutory order of succession. If the deceased has no children, i.e. no heirs of the first order, the parents of the deceased and their descendants (heirs of the second order), i.e. the siblings and nephews etc. of the deceased, inherit. If the deceased had no siblings either, the heirs of the 3rd order inherit, i.e. the grandparents of the deceased and their descendants, i.e. aunts and uncles, cousins of the deceased. If there are no more heirs of the 3rd order at the time of the inheritance, the search for heirs must continue in the deceased's family tree. Heirs of the 4th order are the deceased's great-grandparents and their descendants. If you go back far enough in the deceased's family tree, you will eventually find a descendant of an ancestor. However, the search can be difficult. Even finding heirs of the 3rd order can sometimes be difficult, especially if the deceased's grandparents came from areas of the former German Reich (At the end of the Second World War, a mass exodus from the eastern parts of the German Reich began. East Prussia, West Prussia, Upper Silesia, Lower Silesia and Pomerania were separated from the German Reich at the Potsdam Conference and assigned to Poland or the Soviet Union, meaning that these territories were now foreign countries. The records of the registry offices were also fled. The registry office records from these territories were kept in Registry Office I in Berlin, unless they were lost in the chaos of war).
So even if there is no heirless estate, it is not uncommon for there to be a so-called ownerless estate, i.e. an estate that is currently not being administered by anyone because the heirs do not yet know that they have become heirs and have therefore naturally not yet taken possession of the estate.
In such a situation, the probate court can, under certain conditions, appoint a guardian of the estate to take over the administration of the estate. Please refer to our separate article on the requirements for a guardianship of the estate and the duties and obligations of a guardian.
As the administration of the „orphaned“ estate by a curator of the estate is only intended to be temporary, it is necessary to find the heirs of the deceased.
If no heir can actually be found, the state or the tax authorities ultimately take over the position of heir. However, before the state takes over the estate, it is the task of the probate court to determine the heir or heirs. Section 1964 (1) of the German Civil Code stipulates that the probate court must determine within a reasonable period of time that there is no heir other than the tax authorities. This determination by the probate court then establishes the presumption that the tax authorities are the legal heir in accordance with Section 1964 (2) BGB. The law refers to this as a presumption because there must always be a natural person who is related to the testator. The tax authorities„ right to inherit is therefore only based on the fact that this natural person has not been found. In this respect, the tax authorities are not a “real" heir based on kinship, but only a presumed heir because the heir was not found for very practical reasons.
It follows from this that the right of inheritance of the tax authorities actually depends on how much effort and care has been taken in the search for a relative of the deceased. Sections 1964 and 1965 BGB say nothing about what measures the probate court actually has to take to identify the heirs. Due to the lack of legal requirements, the probate courts also act completely differently in this regard.
The probate court often assigns the task of identifying the unknown heir or heirs to the estate administrator.
It has not been clarified whether and under what conditions the guardian of the estate appointed by the court, who has also been assigned the task of determining the legal heir or heirs, can transfer this task to commercial heir finders. Some people are of the opinion that the curator of the estate cannot transfer this task to a commercial heir tracer and cannot hand over any information to a commercial heir tracer (Holl, Rpfleger, 2008, 286).
In this context, the Berlin Regional Court ruled in its decision of 14 September 2011 - 3 O 613/10 that the heirs do not have a claim against the estate curator to ensure that the latter actually successfully identifies the heirs. However, the curator of the estate has an obligation towards the unknown heirs to do everything reasonable to fulfil his duties in full. When taking on the task of identifying heirs, this also includes initially initiating all necessary and reasonable measures to identify the heirs. However, it is unclear which measures to identify the heirs should be „reasonable“ in this sense. In any case, it will be possible to demand that the estate administrator responsible for tracing the heirs at least makes enquiries to the three registers (death register, marriage register, birth register).