Certificate of inheritance
The inheritance is in Germany , an official certificate in the form of a public deed by § 417 , who ZPO, which determines the legal relations heritage is and what restrictions this subject. The certificate of inheritance is based on the inheritance law at the time of the inheritance , so that later changes are generally not taken into account.
General
In the event of the death of the testator, it is initially unclear to authorized third parties who has become his legal successor as the legitimate heir . The certificate of inheritance is intended to eliminate this uncertainty in legal transactions. The issuance and effects of the certificate of inheritance result from § § 2353 to § 2370 of the Civil Code and § 352 ff. Law on the procedure in family matters and in matters of voluntary jurisdiction .
Content and requirement
The issue of a certificate of inheritance requires acceptance of the inheritance. The certificate of inheritance shows the heirs and - in the case of a community of heirs - the share of the co-heirs in the estate ( Section 352a FamFG). He also shows restrictions on inheritance law, e.g. B. the arrangement of the execution of the will and the arrangement of the pre- and post- inheritance ( § 352b FamFG).
Proof of the right of inheritance does not necessarily have to be provided by certificate of inheritance, unless otherwise stipulated by law or contract.
There are legal regulations in particular with regard to real estate: Proof of the right of inheritance to the land registry can only be provided by certificate of inheritance ( Section 35 (1) sentence 1 of the Land Register Regulations ). However, something else applies if the testator is a public, e.g. B. has drawn up a ( notarial ) will or a notarial inheritance contract . Then the will replaces the certificate of inheritance together with the opening protocol ( Section 35, Paragraph 1, Clause 2 of the Land Register). If the land registry does not consider the right of inheritance to be proven by the public will (e.g. because it is unclearly worded), it can request the submission of a certificate of inheritance ( Section 35 (1) sentence 2 Land Register Regulations).
Contractual regulations were found in the general terms and conditions with financial institutions and insurance companies. After that, they could request the submission of a certificate of inheritance. As a rule it was therefore necessary to prove the right of inheritance by means of a certificate of inheritance. Most banks only made exceptions if a (notarized) will was presented, the amount involved was small and a declaration of liability was signed. However, in a judgment of October 8, 2013, the BGH ruled that a blanket insistence on a certificate of inheritance is inadmissible in the General Terms and Conditions (Az. XI ZR 401/12). Since then, a certificate of inheritance can no longer be requested, unless there are individual doubts about the right to inheritance. As a rule, a notarial will in connection with the opening decision is now sufficient.
No certificate of inheritance is initially required if the testator has an effective power of attorney which does not end with death ( transmortal power of attorney ) or which becomes effective upon death ( post-mortem power of attorney ). The authorized representative can dispose of the estate, but - if he is not the sole heir himself - he is bound by the instructions of the heirs and is accountable to them. If there is a dispute as to who the heirs are, a certificate of inheritance provides clarity.
In addition, no certificate of inheritance is required if a "beneficiary for death" is named in the contract. Then the transfer of rights does not take place in terms of inheritance law: It is not the heirs who acquire the object, but the beneficiary directly. This is often the case with life insurance , but it can also be regulated for savings contracts or other assets.
Publicity effect
The issuance of a certificate of inheritance does not change the objective legal situation as to who actually has a right of inheritance. In § 2365 BGB the - rebuttable - presumption is made that the person named in the certificate of inheritance is actually the heir (sole or co-heir to the specified portion) and that there are no other restrictions on disposal than those mentioned therein. The presumption is limited to the statutory contents of the inheritance, but not to other information that are listed in it (such person an executor, legal capacity of the heirs, legal or testamentary ground for appeal). The legal presumption of § 2365 BGB works for and against the heir named in the certificate of inheritance with regard to the estate liabilities .
This publicity effect of the certificate of inheritance only ends with its confiscation by the court or its annulment in accordance with § 2361 BGB or after it has been issued in accordance with § 2362 BGB. If the issued certificate of inheritance is found to be incorrect, the probate court must either collect it ex officio or declare it invalid . Inaccuracy is present if the requirements for the grant were not originally met or were no longer applicable and the court is convinced that the certificate of inheritance should not have been granted.
The real heir has a claim against the alleged heir to the handover of the certificate of inheritance to the probate court (Section 2362 (1) BGB).
Public belief
The public belief in the certificate of inheritance is regulated in §§ 2366 , 2367 BGB. Here, public belief is established only to the extent of the presumption of § 2365 BGB and this in turn is limited to the legal content of the certificate of inheritance.
Public faith here means that only the existence of the certificate of inheritance is decisive, not that the certificate of inheritance has to be shown to a third party in good faith (e.g. purchaser). According to § § 2365 , § 2366 BGB, the content of the certificate of inheritance is deemed to be correct for a bona fide purchaser if the person shown in the certificate of inheritance conducts acquisition transactions or disposal transactions . In the case of a person of good faith, the certificate of inheritance thus replaces the inheritance law that is actually missing. Anyone who acquires property from the alleged heir on presentation of a certificate of inheritance becomes the legal owner if he was in good faith.
However, the certificate of inheritance does not replace the fact that a sold item or claim does not belong to the estate. No legal appearance is set with regard to ownership (e.g. that the testator was the owner of the property sold or the owner of a claim).
Public faith only protects legal transactions, but not if the inheritance is apparently acquired by the heir by virtue of the law, for example through inheritance, Section 1922 of the German Civil Code (BGB) or through enforcement measures. Section 2366 of the German Civil Code (BGB) covers only so-called traffic transactions in accordance with its regulatory concern to protect legal traffic. Therefore, the certificate of inheritance does not apply in particular to legal transactions carried out by co-heirs to dispute the inheritance.
Certificate of inheritance in banking
The previous practice of financial institutions to require a certificate of inheritance from the heirs when transferring bank accounts of deceased account holders has been illegal since October 2013, according to a ruling by the Federal Court of Justice ; corresponding clauses in the general terms and conditions are ineffective. According to this, the heirs' entitlement to inheritance does not need to be proven by means of a chargeable certificate of inheritance, rather the submission of a certified will or an inheritance contract is sufficient . The BGH thus reaffirmed its earlier jurisprudence , according to which an opened public will provides sufficient evidence of the right of inheritance.
In 2016, the BGH continued this case law. According to the BGH, the succession can be evidenced by submitting an opened handwritten will if this proves the succession with the uniqueness required in legal dealings. A bank that nonetheless requires the submission of a certificate of inheritance is liable to pay compensation for the costs of issuing the certificate of inheritance.
The only exceptions are the cases regulated separately by law, in which the heir has to prove the legal succession in principle by means of a certificate of inheritance (Section 35 Paragraph 1 Clause 1 Land Register Ordinance, Section 41 Paragraph 1 Clause 1 Ship Register Ordinance, Section 86 Law on Rights to Aircraft). The requirement for a certificate of inheritance to be presented may also be justified in unclear cases. Otherwise, the requirements for proof of legal succession must also take into account the legitimate interests of the heirs in processing the estate as quickly and cheaply as possible. The credit institutions with legally adept specialists must be aware that heirs can prove their right of inheritance according to the case law of the BGH and the prevailing opinion in the literature not only with a certificate of inheritance, but also in other ways.
The general obligation to submit a certificate of inheritance can not be derived from the inheritance law of the BGB. The provisions of § § 2366 , § 2367 BGB do not regulate how proof of the right of inheritance can be provided, but under what conditions with discharging effect can be given to the person named in the certificate of inheritance.
Objectively limited certificate of inheritance
The certificate of inheritance generally relates to the entire estate, even if some of it is located abroad and is subject to foreign law. In order to save the German court the sometimes costly and time-consuming examination of foreign law, an objectively restricted certificate of inheritance can be applied for and issued in accordance with Section 352c FamFG, which only relates to the objects located in Germany. In this so-called foreign legal inheritance certificate, in addition to the limitation to the inheritance located in Germany, the reason for the appeal (legal or voluntary succession) and the applied foreign inheritance law (inheritance statute) must be specified. Even if the subject-restricted certificate of inheritance restricts its effect to the property located in Germany, it does not attest to the fact that certain objects belong to the estate.
Agricultural goods
A special feature of German law can be found in the inheritance of farms in the agricultural and forestry sense. Here the certificate of inheritance is also referred to as a court succession certificate and is issued by resolution, which is legally equivalent to the certificate of inheritance. However, the succession and definition of an agricultural or forestry farm is regulated in the farm order and subject to specific conditions. This law applies to the states of Hamburg , Lower Saxony , North Rhine-Westphalia and Schleswig-Holstein . A district court is responsible as an agricultural court , usually for several judicial districts .
Certificate of inheritance procedure
Proceedings that concern certificates of inheritance belong to the estate matters ( Section 342 (1) No. 6 FamFG). The probate court must issue a certificate of inheritance to the heir upon request ( Section 2353 BGB). Applicants can be:
- all heirs ( sole heir , co-heir , prior and subsequent inheritance from subsequent inheritance),
- Executors , executors and estate liquidator and
- Creditors who need a certificate of inheritance for enforcement against the heir (§ § 792 , § 896 ZPO).
If the last place of residence of the testator was abroad, the district court of Berlin-Schöneberg is responsible. The application must be notarized at the probate court or a notary. Here, the applicant must state the facts that justify the alleged right of inheritance ( Section 352 FamFG) and affirm the correctness in lieu of an oath. If a person applies for a joint certificate of inheritance, he or she must prove a power of attorney for the other heirs. The probate court determines ex officio the heir (s). When it considers the necessary facts to be established, it issues the certificate of inheritance.
fees
A fee according to No. 12210 KV GNotKG is due for the procedure for applying for a certificate of inheritance.
For the acceptance of the affidavit, which is generally required according to Section 352 (3) FamFG (not in simple cases (spouse, parents, children inherit)), there is an additional fee based on No. 12210 (2) KV GNotKG and preliminary remark 1 (2) according to No. 23300 KV GNotKG.
The fees increase degressively with the estate value and are tabulated in Appendix 2 to the GNotKG. As a rule, the 2.0-fold of table B is applied (1-fold each for the procedural costs and for the affidavit).
Other states
In the United States of America, the use of revocable trusts established during lifetime has become commonplace, through which the opening of wills and their fees can be limited to a small assessment basis or even completely circumvented.
The provisions of the EU Inheritance Regulation apply to inheritance from August 17, 2015 . Article 62 provides for the introduction of a European Certificate of Succession for use in another Member State.
Web links
Individual evidence
- ↑ BGH, judgment of June 7, 2005 - XI ZR 311/04 .
- ↑ BGH, judgment of October 8, 2013, Az .: XI ZR 401/12
- ^ BGH, judgment of June 7, 2005, Az .: XI ZR 311/04
- ^ BGH, judgment of April 5, 2016, XI ZR 440/15. Retrieved December 21, 2018 .
- ↑ BGH WM 1961, 479, 481
- ↑ OLG Hamm, judgment of October 1, 2012, Az .: I-31 U 55/12
- ↑ Zimmermann, Walter: legal questions in a death, Beck im dtv, Munich, 7th act. u. supplementary ed., p. 131
- ↑ https://www.gesetze-im-internet.de/gnotkg/anlage_2.html
