Act: National Certificate of Succession (Erbschein).
Legal framework: a) § 2353 et seq. of the German Civil Code (BGB); b) §§ 352 et seq. of the Act on Proceedings in Family Matters and in Matters of Non-contentious Jurisdiction (FamFG).
Competent authority: Probate Court the decedent’s last place of residence.
Procedure: The procedure for issuing a National Certificate of Succession (Erbschein) in Germany is as follows:
- The certificate is issued only upon application. Eligible applicants include heirs, executors, administrators, and creditors who need the certificate for enforcement purposes. Participants, such as legal heirs, must also be included in the application.
- The probate court conducts inquiries to verify the claimed right of succession. If the court finds the facts established, it will issue the certificate. If there is disagreement, the issuance may be delayed until the decision becomes final.
- If a participant disagrees with the court’s decision, they can appeal to the Higher Regional Court. The court will review the case and may allow further appeals to the Federal Court of Justice.
- If the certificate is incorrect, the probate court must revoke it. The true heir can demand that the incorrect certificate be returned to the court
Nature, contents and function: The certificate has a constitutive nature. It includes the names of the heirs and their shares of the inheritance. It is presumed to be correct, and the named heir’s succession right is assumed, unless proven otherwise. The certificate also has public faith, meaning transactions based on it are valid unless the acquirer knows it’s incorrect.