Pursuant to Section 2259 (1) BGB, anyone who has a will in their possession that has not been placed in special official safekeeping is obliged to hand it over to the probate court immediately after becoming aware of the testator's death.
Often, the obligation to deliver wills to the probate court is not even known or the surviving dependants do not think about it because all legal heirs and testamentary beneficiaries are in agreement anyway and distribute the estate in accordance with the instructions in the will. Sole heirs also often assume that the will does not need to be handed over. Spouses in particular, if they can continue to administer the estate and dispose of estate items without presenting the will and without a certificate of inheritance on the basis of powers of attorney, often see no need to deliver the will in their possession to the court.
Under certain circumstances, however, a breach of the obligation to surrender may result in an obligation to pay damages or even have criminal consequences. The German Criminal Code (StGB) stipulates that anyone who destroys, damages or suppresses a document that does not belong to them with the intention of causing disadvantage to another person is liable to a prison sentence of up to five years or a fine. According to the statutory provisions, all open and sealed documents relating to inheritance law that constitute a testamentary disposition according to their content must be surrendered, even if they are not labelled as a testamentary disposition. Even if the owner of the document is of the opinion that it is not a will at all, the document must be delivered to the probate court.
The courts take the duty of delivery very seriously. In some cases, liability for negligent non-observance of the obligation to deliver is even assumed, for example if the person in possession of recognisably important documents of the testator fails to inspect them and therefore does not find and deliver a will (see OLG Brandenburg, judgement of 12 March 2008 - 13 U 123/07).