When does the state have a right of inheritance?
In accordance with Section 1936 of the German Civil Code, the country in which the deceased had their last place of residence at the time of inheritance or, if this cannot be determined, their habitual residence, inherits if there are no relatives, spouse or partner of the deceased at the time of inheritance. Otherwise, the right of inheritance passes to the federal government.
Can the state be excluded from the inheritance?
Any instructions made by the testator cannot exclude the state's right of succession. This follows from Section 1938, according to which the testator can only exclude relatives, the spouse or the civil partner from the statutory succession by means of a will. There is no provision for excluding the state from the inheritance.
However, it is conceivable that the state will only participate in the inheritance as a co-heir. For example, the testator can leave only a fraction of the inheritance to an heir in a will, while the remaining share goes to the state.
Can the state waive the inheritance?
According to Section 1942 (2) BGB, the state is not permitted to waive the inheritance. The state is therefore also obliged to settle an over-indebted estate.
How is the state's right of succession determined?
As a rule, it is the responsibility of the probate court to determine the rightful heirs in the event of death. If this investigation is unsuccessful, the probate court is obliged under Section 1965 of the German Civil Code (BGB) to initiate a public announcement requesting the registration of inheritance rights. This procedure is set out in sections 433 et seq. of the Act on Proceedings in Family Matters and in Matters of Non-Contentious Jurisdiction (FamFG). Potential heirs have the opportunity to register with the court within a period set by the probate court.
If these efforts are unsuccessful, the probate court must issue an order pursuant to Section 38 FamFG declaring that no heir other than the state exists. However, this decision acts more as a presumption that the state has become the heir.
If another heir appears and can prove his or her right to inherit, for example by means of a will or an inheritance contract, this presumption is rebutted and the decision can be cancelled.
Before the state's right to inherit has been established, creditors of the estate cannot make a claim against the state on the basis of the principles of heir liability pursuant to Section 1966 of the German Civil Code.