Probate administration - securing the estate after inheritance
Under German law, heirs and relatives are required to settle the affairs of the estate independently. As a rule, no mediating support from the authorities or the probate court is to be expected, unless this is expressly requested by the parties involved and the conditions for intervention by the authorities are met.
What obligations do heirs have in connection with inheritance cases?
Under current German law, the only obligation for parties involved is to submit a will drawn up by the testator in accordance with Section 2259 of the German Civil Code. The probate court will then open the will and inform the next of kin of its contents.
Irrespective of the obligation to deliver the will, heirs are generally responsible for settling the estate themselves. This means that the parties involved are responsible for asserting and enforcing their inheritance claims themselves.
In this context, legal conflicts often arise in practice. The most common issues are the validity of the will, the assertion of compulsory portion claims and possible supplementary claims. In some inheritance cases, individual parties even refuse access to the inheritance altogether, even before the will has been opened or the certificate of inheritance has been issued.
Although the heirs are entitled to a claim for restitution against the unlawful owners of the estate in accordance with Section 2018 BGB, it can take months to enforce the claim, especially if the person refuses to cooperate.
When can a guardian of the estate be appointed?
If the problems described above arise or are feared to arise immediately after the death, there is the possibility, in accordance with Section 1960 Paragraph 1 Sentence 1 of the German Civil Code, that the probate court can ensure that the estate is safeguarded until the inheritance is accepted, insofar as there is a need to do so. This also applies if the heir is unknown or if it is uncertain whether he or she has accepted the inheritance.
The relevance of the need to secure the estate as a necessity for the probate court to intervene must be particularly emphasized. There is no need for security if the estate is already being reliably administered by a person.
Who can be appointed as a guardian of the estate?
The tasks of a curator of an estate can be demanding and fraught with liability, particularly in the case of large estates. Pursuant to Section 1779 of the German Civil Code (BGB), the court should select a suitable person who is qualified to take on the tasks of the curator of the estate in terms of their personal circumstances and financial situation.
The judicial officer at the probate court selects and appoints the guardian of the estate.
In practice, it is often the case that tried-and-tested people who have already taken on estate administration in the past are used. Tax advisors or lawyers are often used.
It should be noted that there is no legal entitlement to be appointed as a curator in a particular probate matter. Rather, the selection is made on the basis of the obvious interest of a suitable person in taking on the role.
Conflicts of interest are also avoided during the selection process. For example, persons who have a claim against the estate are not considered as curators from the outset.
In the case of particularly wealthy estates, the appointment of a curator can sometimes be made dependent on whether this person can provide proof of financial loss liability insurance with a correspondingly high sum insured.
What are the duties of the estate administrator?
The guardian of the estate must look after the interests of the heirs. As a rule, their task is to identify, administer and secure the estate. They also identify the heirs and determine the order of succession.
In order to be able to carry out his tasks, the estate administrator can first take possession of the heirs. This right of possession also includes a claim for the surrender of the estate items against anyone.
In addition, pursuant to Section 1960 (2) of the German Civil Code (BGB), the probate court can administer the estate, in particular by affixing seals, depositing money, securities and valuables and ordering an inventory of the estate to be drawn up.
How is a curator of an estate remunerated?
There is no explicit statutory regulation for the amount of the estate administrator's remuneration. Rather, the remuneration of a curator of an estate is based on the provisions for the remuneration of a family law curator.
§ 1915 (1) BGB refers to Section 1836 BGB in guardianship law. According to this provision, the professional guardian can generally claim remuneration.
The amount of remuneration is determined according to three criteria:
1. the scope of the guardianship of the estate
2. difficulty of the administration of the estate
3. expertise of the estate administrator
In Germany, the probate courts implement these legislative requirements for determining the remuneration of the estate administrator very differently. In some cases, the courts have developed entire remuneration tables such as the "Berlin Remuneration Table". In its ruling dated March 5, 2014, the Higher Regional Court of Düsseldorf deemed an hourly rate of EUR 75 to be appropriate (Ref.: I-3 Wx 245/13).
The claim for remuneration is directed against the estate. If there are insufficient assets in the estate, the claim is to be directed against the state treasury.
When is the guardianship of the estate terminated?
According to the wording of Section 1960 (1) of the German Civil Code (BGB), the guardianship of the estate must take care of the estate until the heirs accept the inheritance.
Furthermore, the guardianship of the estate is terminated when the heir is identified by the guardian of the estate.