Which German Probate Court to Apply to?

How to find the correct probate registry in cross-border inheritance cases

Germany has 638 County Courts (Amtsgerichte), each of which has a probate department (Nachlassgericht). In order to obtain a German grant of probate (Erbschein), the applicant must address the right one, namely the County Court which has local jurisdiction (örtliche Zuständigkeit). 

This is the first aspect which any local probate registrar (Rechtspfleger) in Germany checks, because it is an easy way of getting an application “off their desk” and make the case someone else’s problem. Thus, if the court which the applicant has contacted comes to the conclusion that it does not have jurisdiction, they will refer it to another German probate registry in another city, which will delay the already slow probate procedure for many additional months.

What are the relevant criteria under German probate procedure rules?

It is simple and straight forward if the deceased hat their habitual residence (gewöhnlicher Aufenthalt) in Germany at the time of their death. Then that local probate court is in charge of dealing with the probate application.

However, in cross border cases, the deceased has often lived elsewhere at the time of their death.

If he or she has lived in another EU country which applies the EU Succession Regulation (which are all EU member states except Irland and Denmark), then the probate application MUST be made in that country. The option to apply for a limited German grant is not available anymore since the EU Succession regulation came into effect. Example: The deceased was a German national, owned property and a large bank account in Germany, but had lived in Spain for the last few years of his life, where he only held a small bank account. The heirs (even if they are also German nationals living in Germany) will still have to apply for a European Succession Certificate in Spain! If they tried to apply for a German grant (Erbschein), the German court would refuse because the German court does not have jurisdiction. The only way to avoid this is to create a will in which the testator opts for the German courts to have jurisdiction.

If the deceased has neither had their habitual residence in Germany nor in an EU member state which applies the EU Succession Regulation, but has held assets in Germany, then it gets really difficult. In order to find the right German probate court which has venue, the applicant must go through the following checklist (also see section 343 FamFG):

  1. Has the decedent EVER lived in Germany? If yes, where in Gemany did he or she have their last German habitual residence? The German probate court in that region is then in charge of the probate application, even if the even deceased had given up the German residence decades ago (recent court rulings on this issue are OLG Düsseldorf, court order dated 18.9.2023, case file # 3 Sa 5/23). In international cases it is often difficult to find documents to prove where grandpa or grandma had last lived in Germany before they moved to the UK or the USA more than 50 years ago. 
  2. If the deceased had never lived in Germany (but still owns assets there), then the probate application must be sent to the “catch all” probate registry in Berlin Schöneberg if the deceased was a German national (rare cases).
  3. If the deceased who had never lived in Germany was not a German national, then the application can be sent either to the catch all probate registry in Berlin Schöneberg, but it can also be sent to another German probate court where the deceased owned assets (if known). If the application is sent to the probate court Berlin Schöneberg, the court may still refer the application to another German court where the deceased has held assets, especially if the asset is property. 

This shows that an applicant can easily make mistakes when trying to find the right German probate court which will cost valuable time.

Find more on German Succession Law and German Probate here:

German lawyer Bernhard Schmeilzl, co-founder of the German law boutique www.graflegal.com, specialises in UK-German probate and estate administration since 2000. He is an expert in British-German legal matters and editor of the major law blog on English law in German language: https://www.englischesrecht.de/

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