Partial Certificate of Inheritance - No Proportionate Payment of Bank Balances

 

Can a partial certificate of inheritance be used to demand pro rata payment from the bank account?

 

If the decedent left several heirs, the heirs together form a community of heirs. By means of a certificate of inheritance, they can prove their status as heirs to banks or other authorities, for example.

 

For this purpose, the heirs either have the option of applying for a joint certificate of inheritance (generally the best option) or each heir can apply individually for a so-called partial certificate of inheritance. 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 is possible, for example, if other legitimation is possible for the other shares in the estate, e.g. by means of an executor's certificate relating to the other share in the estate or by means of an executor's certificate also relating to the other part of the estate.

 

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 numerous partial certificates of inheritance are then available, the problem of obtaining corresponding declarations or instructions to a bank from all heirs follows.

 

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. If, for example, a bank account with a balance of €100,000.00 belongs to the estate, a co-heir with a ½ share in the inheritance cannot demand that the bank pay out €50,000.00 to him or her on a pro rata basis. Therefore, a partial certificate of inheritance showing the heir to be a ½ co-heir would not be of any help to the heir. Rather, under section 2040 (1) of the German Civil Code, heirs can only dispose of the estate jointly. The co-heirs must therefore agree in principle if they demand payment of a credit balance from a bank. The bank will only follow the instructions of the heirs if all the co-heirs can prove their status as heirs and a uniform instruction has been issued by all the co-heirs. The status of all co-heirs as heirs can be proven, for example, by presenting a joint certificate of inheritance or by presenting several partial certificates of inheritance.

 

A majority among the co-heirs is also not sufficient. The request of a co-heir or the majority of heirs for payment of the credit must be measured against the requirements of Section 2040 (1) of the Civil Code. This requires "joint" action by the community of co-heirs. This is understood to mean that all co-heirs, without exception, act unanimously. In its decision of May 8, 2018, the Kammergericht (4th Civil Senate) (Case No.: 4 U 24/17) therefore required that a termination of the deceased's current account and savings account for the purpose of paying out the credit balance to the heirs can only be effective if all co-heirs and not only ¾ of the heirs agree to this action (para.8). The court states in the order that even a pro rata payment of ¾ of the credit balance is not permissible (para. 14).

 

The question of the legitimation of the individual co-heirs through certificates of inheritance and the only joint disposal of the estate must be distinguished from the authorization 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 pension power of attorney, and stipulated that this power of attorney should also continue in the event of death (post-mortem power of attorney), an individual co-heir (or any other authorized representative) can act on the basis of the power of attorney granted and, if necessary, demand payment - 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.