Probate estate

from Wikipedia, the free encyclopedia

The estate curator ( § 1960 BGB ) is a curative body ordered by the probate court to secure the estate , in particular by appointing a curator, which can take place until the inheritance is accepted or an heir is determined. Even after the FamFG came into force on September 1, 2009, the appointment of the curator of the estate requires not only the commission but also his formal obligation by the estate court according to § 1789 in conjunction with § 1962 BGB.

Requirement of unknown inheritance

The heirs are also “unknown” within the meaning of the regulation if, for legal reasons, they cannot be determined by the probate court without extensive investigations. There is sufficient uncertainty about the final heir for the appointment of a curator of the estate, even if proceedings for a judicial determination of paternity of the testator are still being carried out, provided there is a certain probability of paternity. With regard to the temporary nature of security measures, the requirements must not be too high.

Request also by creditors

A creditor can also apply to the probate court for the appointment of a curator ( Section 1961 BGB). In the case of a needy estate, the order of the estate curator cannot be made dependent on the applicant making an advance payment of the court costs.

The appointment of a curator at the request of a creditor does not require that the claim is to be asserted in court immediately. It is sufficient for the obligee to first want to pursue the claim out of court. The prerequisites of § 1961 BGB are regularly given if the heir is unknown and the landlord of the deceased needs a contact person in order to terminate the rental agreement and to be able to clear the rental apartment. The estate maintenance for the unknown heirs cannot be limited to the termination of the tenancy if the rental apartment is due to be vacated.

tasks

The curator of the estate is the legal representative of the unknown heir (s) and a. the task of identifying them and handling the estate (contact with the estate creditors , payment of funeral costs , termination and settlement of the residential tenancy agreement with the testator, etc.).

In this context, the administrator of the estate also has a legitimate interest to inspect civil status documents at the registry offices (§ 61 para. 3 PStG). The curator of the estate can transfer the heir determination to a professional heir investigator if he has previously taken all necessary and reasonable measures to identify the heirs himself and was unsuccessful. In the event of an early intervention, he is liable to pay compensation to the heirs. A probate court approval for the involvement of the heir investigator is not required.

Estate curator and funeral

The State Social Court of Hesse and the State Social Court of Berlin-Brandenburg have determined that a curator of the estate cannot assert a claim from the unknown heir to the assumption of funeral costs according to Section 74 SGB XII against the social welfare institution. In both cases, the curator of the estate arranged for the burial to be carried out and requested that these costs be paid by the social welfare agency. In both cases these applications were rejected.

Both regional social courts confirmed that only the heirs are obliged to pay the funeral costs according to § 1968 BGB. In terms of social assistance law, it does not depend on whether the testator was in need of social assistance, but only on whether the heirs are entitled to social assistance. In the case of unknown heirs, however, the requirements for social assistance need not be clarified. The curator of the estate cannot assert these claims either, since the curator's sphere of activity only comprises the representation of the heirs in relation to the estate. The curator of the estate cannot assert the heirs' own claims, such as the right to social assistance. The heirs must pursue this claim themselves.

Estate liabilities

The curator of the estate is entitled and, if necessary, obliged to settle estate liabilities , if this avoids damage or unnecessary processes and costs. In principle, the curation of the estate does not serve to satisfy the creditors of the estate, as it is arranged to protect the heirs. However, if the curator of the estate is entrusted with the security and administration of the estate, his duties include, in particular, maintaining and administering the estate and safeguarding the financial interests of the future heirs. The curator of the estate decides which measures are appropriate in this respect at his due discretion.

In this context, he can use the estate's funds and taking into account the limited liability of the heirs to fulfill obligations of the estate if this is necessary to maintain the estate's value, because he must not expose the estate to the risk of a hopeless, costly litigation. To this end, he can also sell inheritance items. The liabilities to be settled can also include claims for repayment by the social welfare institution (Section 102 SGB XII) and the state treasury according to Section 1836e BGB (if legal care was ordered for the deceased during his lifetime ). The curator of the estate is also obliged to submit the inheritance tax return (Section 31 (6) ErbStG).

Absent heir

If the heir is known and only his whereabouts are unknown, absenteeism applies instead . As soon as the heir is determined, the estate is lifted. Here it is not a question of an absolutely reliable clarification of the succession, but it is sufficient that there are no significant doubts about the status of the heir of the identified person.

compensation

The curator of the estate is remunerated in accordance with the Guardian and Supervisor Remuneration Act (VBVG) in the case of professional guardianship management , whereby deviations from the hourly remuneration rates there are possible according to § 1915 BGB. In the case of voluntary management of the guardianship, there is only a claim to reimbursement of expenses ( § 1835 BGB).

Professional estate administrators who want to have their work for processing the estate remunerated must bill according to the time required. However, billing to the minute is not required. It is sufficient that the information enables the approximate order of magnitude to be determined and can be the basis for an estimate to be carried out in accordance with Section 287 of the German Code of Civil Procedure. The resolution by which the remuneration of the curator of the estate is set against the heir is an enforcement order only against the estate, not against the assets that the heir has other than the estate.

For the remuneration of the curator of the estate in the case of a wealthy estate, the hourly rates are in principle to be determined independently of the provisions of the VBVG on the basis of the criteria of Section 1836 (2) BGB. The fixed rates for the remuneration of the professional guardians (between 19.50 and 33.50 euros per hour) can only be used as a guide in individual cases and only in the sense of minimum rates if the specific estate processing is simple.

The hourly rates staggered according to the level of training in Section 3 (1) VBVG can also be a useful guide - reference in the sense of minimum rates - for the calculation of the hourly rates for the remuneration of a professional estate curator in the case of a wealthy estate. They can be exceeded in accordance with the criteria laid down for the remuneration of the curator in Section 1915 (1) sentence 2 of the German Civil Code. The use of a staggered table developed on this basis by case law, in which usable specialist knowledge and difficulty of the task are adequately taken into account, is therefore not objectionable. The Higher Regional Court of Thuringia saw staggered hourly rates between 35 and 115 euros as appropriate.

The decision on the remuneration of a curator must be justified. The interests of the unknown heirs are to be protected in the assessment procedure by appointing a supplementary custodian.

The 15-month exclusion period ( § 2 VBVG) also applies to reimbursement claims by estate administrators. However, it is possible to apply for an extension of the deadline for all future remuneration applications.

When determining the remuneration, the probate court is not bound by the remuneration agreement concluded between the curator and the heir. This is ineffective for the judicial determination procedure. The objection of inadequate administration is excluded from the determination of the remuneration for the curator by the probate court.

However, if a curator of the estate has been convicted of breach of trust at the expense of the estate to be administered by him, any claim for remuneration is forfeited

See also

Web links

literature

  • du Carrois: The over-indebted estate - options for the curator of the estate ; Rpfleger 2009, 197
  • Deinert / Jegust / Lichtner: Death and Funeral Law , 4th edition, Düsseldorf 2010, ISBN 978-3936057317 .
  • Jochum / Pohl: Nachlasspflegschaft , 5th edition, Cologne 2014, ISBN 978-3-8462-0216-6 .
  • Schulz (Ed.): Handbook of estate maintenance , 2nd edition, Bonn 2017, ISBN 978-3-95661-057-8 .
  • Schulz: The curator in inheritance law: estate curator and other curators ; Hereditare, Yearbook for Inheritance Law and Gift Law, Volume 4 (2014), 61, ISBN 978-3-16-153405-8 .
  • Schulz / Schmitz: The account management of the estate administrator ; ZEV 2015, 80.
  • Siebert: Deposit of estate values ​​as a (pre-) last measure . Published in Rpfleger 2018, 517 ff.
  • Siebert: Identifying heirs as a task for Rechtspfleger, estate curator and heir investigator . Published in ZEV 2019, 688 ff.
  • Zimmermann: Legal questions in the event of a death , 5th edition, Munich 2004, ISBN 3-423-05632-0 .
  • Zimmermann: Die Nachlasspflegschaft , 4th edition Bielefeld 2017, ISBN 978-3-7694-1175-1 .
  • Zimmermann: The remuneration of the curator since July 1, 2005 ; ZEV 2005, 473.
  • Zimmermann: The estate maintenance and other estate proceedings in the FamFG ; Rpfleger 2009, 437.
  • Zimmermann: Recent case law on the remuneration of custodians, guardians ad litem, legal advisers and administrators of the estate ; FamRZ 2011, 1776.

Individual evidence

  1. ↑ OLG Stuttgart, decision of November 25, 2010, Az. 8 W ​​460/10 , BeckRS 2010, 29404 = FamRZ 2011, 846 = NJW-RR 2011, 737 = FGPrax 2011, 88
  2. ↑ OLG Frankfurt am Main, decision of November 23, 2004, Az. 20 W 91/04, full text: decision of the BGH of July 17, 201 , NJW-RR 2013, 72; Full text: IV ZB 23/11
  3. ↑ OLG Schleswig-Holstein, decision of May 20, 2011 - 3 Wx 51/11 ; NJW-RR 2011, 1643
  4. ↑ OLG Hamm, decision of January 5, 2010 , Az. I-15 W 383/09; NJW-RR 2010, 1594 = Rpfleger 2010, 590 = FGPrax 2011, 29 and OLG Dresden, decision of December 9, 2009 - 3 W 1133/09, Rpfleger 2010, 215 = FamRZ 2010, 1114
  5. ↑ OLG Cologne, decision of December 10, 2010 - 2 Wx 198/10; MDR 2011, 370 = FGPrax 2011, 128 = FamRZ 2011, 1251
  6. ↑ OLG Munich, decision of March 20, 2012 - 31 Wx 81/12 ; NJW-RR 2012, 842 = FGPrax 2012, 118
  7. ↑ OLG Hamm, decision of June 22, 2010 , Az. I-15 W 308/10.
  8. ↑ OLG Celle StAZ 1998, 81; OLG Frankfurt Rpfleger 2000, 161; OLG Bremen StAZ 1998, 255; LG Berlin Rpfleger 2000, 393
  9. ^ LG Berlin ZEV 2012, 413
  10. ↑ OLG Frankfurt / Main, Rpfleger 2000, 161
  11. ↑ Decision of May 7, 2013, Az. L 6 SO 93/10; see. at http://dejure.org/2013,22046
  12. ^ Judgment of March 20, 2013, Az. L 23 S 97/11; see. under Archived Copy ( Memento of the original from June 26, 2015 in the Internet Archive ) 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. @1@ 2Template: Webachiv / IABot / www.bayernportal.jurion.de
  13. ^ BGH, decision of October 26, 1967, Az. VII ZR 86/65; BGHZ 49, 1, 5.
  14. ↑ OLG Munich, decision of January 7, 2010, Az. 31 Wx 154/09 .
  15. ↑ OLG Stuttgart, decision of June 29, 2007, 8 W 245/07 ; FamRZ 2007, 1912 = BtMan 2007, 203 (Ls) = FGPrax 2007, 270 = NJW-RR 2007, 1593 = BWNotZ 2008, 57
  16. ↑ BGH, decision of March 14, 2018 - IV ZB 16/17 ; OLG Munich, decision of March 16, 2015, 31 Wx 81/14 ; therefore outdated: OLG Celle, decision of March 24, 2016 - 6 W 14/16
  17. ↑ OLG Celle, decision of June 30, 2016, 6 W 81/16
  18. ↑ OLG Schleswig, decision of December 18, 2009, Az. 3 Wx 24/08.
  19. ↑ OLG Schleswig, decision of January 14, 2010, Az. 3 Wx 63/09 .
  20. ^ Resolutions of the Thuringian Higher Regional Court of June 3, 2013, 6 W 430/12 and 6 W 397/12
  21. ^ LG Berlin, decision of December 3, 2007 , Az. 87 T 233/07, 87 T 234/07.
  22. ^ LG Berlin FamRZ 2004, 1518; KG FamRZ 2006, 225 = FGPrax 2005, 264; KG FamRZ 2006, 651 = Rpfleger 2006, 76; OLG Zweibrücken FamRZ 2007, 1271 = Rpfleger 9/2007; OLG Zweibrücken, decision 3 W 49/07 of April 30, 2007; FGPrax 2007, 232 = Rpfleger 2007, 471 = ZEV 2007, 528 (Ls) = BtPrax 2007, 267 (Ls); OLG Naumburg, 2 Wx 15/11; BtPrax 2012, 39 (Ls); BGH decision of October 24, 2012, IV ZB 13/12, full text http://lexetius.com/2012,5596 .
  23. ↑ BayObLG, FamRZ 2003, 1414; OLG Bremen, decision of March 15, 2012, 5 W 19/11 ; OLG Düsseldorf, decision of April 18, 2017, NLPrax 2019, 49 with note Gleumes .
  24. ↑ OLG Celle, decision of May 30, 2011 , Az. 6 W 120/11.
  25. ↑ District Court Coburg, decision of March 5, 2009 - 41 T 6/09, cf. at https://www.rechtslupe.de/zivilrecht/erbrecht/der-untreue-nachlasspfleger-37851