Probate Court
Germany
According to the law on the procedure in family matters and in matters of voluntary jurisdiction (FamFG), which has been in force in Germany since September 1, 2009 , the local court as the probate court at the last place of residence of the deceased ( § 343 FamFG, § 23a GVG) is responsible. Since September 1, 2009, the probate court has also had special jurisdiction for disclaimers, in whose district the party discarded has his place of residence ( Section 344 (7) FamFG). In contrast to this, in Baden-Württemberg, in accordance with Section 38 of the State Law on Voluntary Jurisdiction, the state notaries' offices were responsible as probate courts until December 31, 2017 . Since January 1, 2018, the local courts have also been probate courts here.
The factual jurisdiction of the probate courts includes the so-called probate matters according to § 342 Abs. 1 FamFG like the issue of the certificate of inheritance according to § § 2353 ff. BGB . But also the safekeeping and opening of wills and inheritance contracts , the receipt of succession statements , the appointment of a curator and the appointment and dismissal of an executor are among the tasks of the probate court.
Decisions of the probate court can be challenged with the complaint , on which a civil chamber of the higher regional court decides as the second instance of fact (§ § 58 ff. FamFG). The third instance is the Federal Court of Justice if the Higher Regional Court allows the appeal on points of law to the BGH ( Section 70 ff. FamFG).
Austria
The probate court is called the probate court here. See under probate procedure .
Switzerland
In Switzerland , the term probate court is understood not only to mean the court that is responsible for matters relating to inheritance law , but also the judicial authority that has to decide in the probate process (including amicable private debt settlement ).
The decisions of the probate court are made in summary proceedings (Art. 25 No. 2 lit. a SchKG ).
United States
In the United States, the probate court deals with issues relating to the distribution and administration of the estate. The probate court governs the fair distribution of the testator's property. Unlike Germany, the discount applies ( estate ) in the US as a legal person ( separate legal entity , corporate entity ). The probate court decides on the validity of wills, enforces the determination of a valid will, and prevents the trespassers from breaking the law. It also ensures an equitable distribution of the assets of people who have died without a valid will.
Estate and Estate Administration
In the USA, the estate does not pass directly to the heirs, but to the estate administrator (the personal representative ), a personal successor in title to the testator. This can be specified in the will (in this case called executor ) or, if there is no will, no personal successor in title has been determined or who is prevented from exercising this office, can be appointed by the probate court (in this case called administrator ). The administrator of the estate has a fundamentally different role in the USA than in Germany, for example. It should be emphasized:
“Through the appointment or appointment, the personal legal successor of the testator only obtains fiduciary but nonetheless actual property rights to the entire estate, which only end when the dispute over the estate is concluded. Up to this point in time, the heirs have no guaranteed rights to the estate, only an entitlement. "
The administrator of the estate must secure, manage and liquidate the estate. For this he needs a certificate of his rights ( grant of probate or letters of administration ), which the probate court will issue upon his request. He must prepare an estate register and notify the tax authorities of the statement of assets for calculating the federal and state estate tax. This list determines the total value of the estate on the day of death, if necessary with the help of professional appraisals of real estate or valuables and a listing of gifts given in recent years. The administrator of the estate must file the estate's outstanding tax returns and pay the liabilities, including all estate and inheritance taxes. Finally, he submits the final liquidation and distribution account to the probate court for approval; in general there is a period of one year for this.
The administrator of the estate is under the supervision of the probate court. The heirs, or usually the lawyer representing them in the USA, can also turn to the probate court, for example to gain access to the files.
Other elements of estate planning
In the USA, it is possible to bequeath assets to the actual estate and thus bypassing legal probate proceedings. For example, a trust can be set up for estate planning or common property can be treated separately.
Trust
- Main article: Trust (law)
With a trust the particular fact fiduciary manager (falls trustee ) to the task of managing the trust assets in trust for the beneficiaries. In a Trust is between income ( income ) (and capital trust principal ) are differentiated; there are generally differences in the timing or circumstances required for any particular payment from the trust. A trust is subject to judicial supervision to a lesser extent.
For the administrator of the estate as well as for the trustee, if he takes on this role, he is responsible for understanding and carrying out the tasks incumbent on him. He should document all his actions and decisions. He may be personally liable, for example if unnecessary fees are incurred due to invoices being paid late or if the necessary insurance cover is not provided.
Joint tenancy
In the USA, as in the UK, for example, one speaks of joint tenancy when several people have joint rights to an object, such as a property or a bank account. This is to be distinguished from mere co-ownership.
Individual evidence
- ↑ s. on this, Hunziker / Pellascio, Debt Collection and Bankruptcy Law , ISBN 978-3-280-07072-7 , pp. 318 f., 338.
- ↑ Hunziker / Pellascio, Debt Collection and Bankruptcy Law , p. 319.
- ↑ Peter K.-D. Barandt: Special features of German-American inheritances and estates including tax law. Retrieved June 9, 2013 .
- ↑ a b American probate proceedings. (No longer available online.) German representations in the USA, archived from the original on September 3, 2013 ; Retrieved June 9, 2013 . Info: The archive link was inserted automatically and has not yet been checked. Please check the original and archive link according to the instructions and then remove this notice.
- ↑ a b Inheritance law of the USA. Retrieved June 9, 2013 .
- ↑ Guidelines for Individual Executors and Trustees, Section “Trust Administration”. American Bar Association, accessed June 9, 2013 .
- ^ Guidelines for Individual Executors and Trustees. Retrieved June 9, 2013 .
- ^ Inheritance law in the UK (England & Wales, Scotland, Northern Ireland) and Hong Kong. Retrieved June 9, 2013 .
- ↑ joint tenancy. (No longer available online.) Archived from the original on May 17, 2012 ; Retrieved June 9, 2013 . Info: The archive link was inserted automatically and has not yet been checked. Please check the original and archive link according to the instructions and then remove this notice.
