Procedure for opening a will at the probate court
If the testator has left a will, the surviving dependants and the probate court are obliged to implement the last wishes of the deceased. As a rule, this process is carried out by opening a will at the probate court.
What is the probate of a will?
Pursuant to Section 348 (1) FamFG, the probate court is obliged to open the disposition of property upon death in its custody as soon as it becomes aware of the death of the testator.
The officially deposited will
If the testator has placed his will in the official custody of a probate court, either himself or through a notary, the probate court is obliged to open the will as soon as it becomes aware of the testator's death (Section 348 (1) FamFG).
The non-official will
If a relative or another person finds a will, this person is obliged to bring this testamentary disposition to the probate court. The destruction or falsification of a will can be prosecuted under certain circumstances.
If the court has learnt of the existence of a testamentary disposition, the probate court can issue an official order requiring the owner to surrender the documents. In addition, the probate court can demand an affidavit from persons regarding the whereabouts of a will. Furthermore, in the event of a refusal to surrender the documents, this can be enforced and an administrative fine imposed.
How is the announcement made?
The most common way of announcing a will is to send a copy of the will to the parties concerned.
The promulgation of a will typically does not occur through a personal meeting with the parties involved, but rather in writing. After the probate court has opened the will, the legal heirs and the persons named in the will receive a certified copy or transcript of the opened will. With this delivery, the will is considered promulgated.
Personal attendance by the parties in court is generally not required. The proceedings are usually conducted in writing. Upon receipt of the copy, the parties officially become aware of the contents of the will. From this point on, deadlines for, for example, disclaiming the inheritance or asserting inheritance claims can begin to run.
Which probate court is responsible?
The probate court with jurisdiction is the one at the deceased's last habitual residence. The decisive factor is the residence the deceased had at the time of death. The probate court is a department of the respective local court.
If the deceased had their last habitual residence abroad, international jurisdiction is governed by the provisions of the European Succession Regulation (EU Succession Regulation) or by national law. In such cases, the question of jurisdiction can be more complex and should be legally reviewed if there is any doubt.
How long does it take to open the will?
Upon learning of the testator's death, the probate court generally opens the will promptly. In practice, the waiting period is often around three to four weeks. However, the actual duration depends on the workload of the respective court and the complexity of the estate.
In straightforward cases, the probate process typically takes place within one month. However, in complex or international cases, where jurisdiction is unclear, or there are multiple wills, the process can extend over several months. There is no legally mandated deadline for probate, but the court is obligated to conduct the proceedings without undue delay.
What costs are incurred for the opening of a will?
Fees of €100 are incurred for court work. In addition, there are costs for expenses such as postage, paper costs etc.. If the will is opened by a notary, an additional 19 % VAT will be charged.
In principle, the heirs bear the costs of opening the will. However, these can be deducted from the estate as a liability.
Conclusion on the opening of the will
The opening of a will is a crucial step in probate proceedings and serves as the official notification of the testator's last will and testament. As soon as the court receives notification of the death, the will—regardless of whether it was in official custody or not—is opened and communicated to the relevant parties. This marks the beginning of the formal implementation of the testator's last will.
The process of probate ensures that testamentary dispositions are handled transparently and that all parties involved, especially the heirs, are informed of their contents. The judiciary plays a neutral role in this process and guarantees its proper execution. With the probate, the disposition is officially documented and forms the basis for the further administration of the estate.
For heirs, the opening of a will is often their first legal contact with the probate court. It clarifies rights, obligations, and potential claims. Especially in cases of complex or multiple wills, an early legal review is recommended to properly assess the implications of the opened will.