Is it possible to instruct the bank to pay out the balance pro rata with a partial certificate of inheritance?
If the deceased has left several heirs, the heirs together form a community of heirs. A certificate of inheritance enables the heirs to prove their status as heirs to banks, insurance companies or other contractual partners of the deceased or authorities.
Each heir can apply for the issue of a joint certificate of inheritance. In a joint certificate of inheritance, all heirs are shown with their respective share of the inheritance. However, it is also possible for the heir to apply for a so-called partial certificate of inheritance on their own. A partial certificate of inheritance may be sufficient if only the co-heir status with regard to a share of the estate is to be proven. This may be the case, for example, if another form of legitimisation is possible for the other shares of the estate, e.g. by means of an executor's certificate relating to the other share of the estate or by means of an administrator's certificate also relating to the other part of the estate.
Difficulties with multiple co-heirs and certificates of inheritance
Obtaining a joint certificate of inheritance can also be problematic if there are numerous co-heirs and it is already difficult to identify the individual heirs. In special constellations, it may take a very long time to identify all heirs. Even if a joint certificate of inheritance or several partial certificates of inheritance are then available, there is still the problem of obtaining corresponding declarations or instructions to a bank from all the heirs.
No partial disposal of bank balances pursuant to Section 2040 of the German Civil Code (BGB).
However, a co-heir cannot dispose of the estate „pro rata“, even if the inheritance quotas or even the distribution of the estate assets are undisputed. For example, if the estate includes a bank account with a balance of €100,000.00, a co-heir with an inheritance share of ½ cannot demand a pro rata payment of €50,000.00 from the bank. Therefore, even a partial certificate of inheritance, which identifies the heir as a co-heir to ½, would not help the heir. Instead, heirs can only dispose of the estate jointly in accordance with Section 2040 (1) BGB. The co-heirs must therefore generally be in agreement if they request payment of a credit balance from a bank. The bank will only comply with the instructions of the heirs if all co-heirs can prove their status as heirs and a uniform instruction from all co-heirs is available. The status of all co-heirs as heirs can be established, for example, by submitting a joint certificate of inheritance or by submitting several partial certificates of inheritance.
Even a majority among the co-heirs is not sufficient to oblige a bank to pay out credit balances. The request of a co-heir or the majority of heirs to pay out the credit balance must be measured against the requirements of Section 2040 (1) BGB. This requires „joint“ action by the community of co-heirs. This means that all co-heirs, without exception, must act unanimously. In its decision of 8 May 2018, the Court of Appeal (case no. 4 U 24/17) therefore ruled that a termination of the deceased's current account and savings account for the purpose of paying out the balance to the heirs can only be effective if all co-heirs and not just ¾ of the heirs agree to this action. The court states in the ruling that even a pro rata payment of ¾ of the assets is not permitted.
Exception: Postmortem or transmortal power of attorney
The question of the legitimisation of the individual co-heirs through certificates of inheritance and the only joint disposal of the estate must be distinguished from the authorisation of individual co-heirs by the testator. If the testator had granted a power of attorney to a co-heir during his or her lifetime, e.g. a bank power of attorney or a general or Healthcare proxy and stipulates that this should continue in the event of death (post-mortem or trans-mortem power of attorney), an individual co-heir (or any other authorised representative) can act on the basis of the power of attorney granted and, if necessary, demand the payment of bank deposits - at least as long as such a power of attorney has not been revoked by one of the co-heirs. The question of whether the heirs can prove their status as heirs by means of a joint certificate of inheritance or several partial certificates of inheritance is then irrelevant.
Conclusion regarding the partial certificate of inheritance
A partial certificate of inheritance can be useful in certain situations when an individual co-heir needs to prove their status as an heir to third parties. However, it does not replace the joint action of the heirs. Even with a partial certificate of inheritance, a co-heir cannot demand a proportionate distribution of bank balances, as the estate can generally only be disposed of jointly.
Whether a joint certificate of inheritance or several partial certificates of inheritance should be applied for depends on the individual case. Practical considerations such as the duration of the proceedings, coordination among the co-heirs, and the associated costs must also be taken into account. The probate court at the deceased's last place of residence is responsible for issuing the certificates.
Especially when there are multiple heirs or in contentious situations, it is advisable to seek legal counsel early on. A lawyer specializing in inheritance law can assess whether applying for a partial certificate of inheritance is advisable or whether other solutions – such as powers of attorney or a joint certificate of inheritance – would be more appropriate.