According to German law, the estate (located in Germany) of a deceased person comes under the principle of 'universal succession,' meaning that the heirs become owners of the deceased person's estate upon his death. The succession is determined either by law or by disposition in contemplation of death. (The executor, under South African law, is basically unknown to German law)
However, heirs must prove their right to inheritance by a Certificate of Inheritance (“Erbschein”) which is required for the heir(s) to dispose of real estate, bank assets or rights (i.e. restitution claims). It is issued by a German Surrogate's Court (“Nachlassgericht”). This court is usually located at the last residence of the decedent or, if he/she had no residence in Germany, it is determined by the location of the estate assets.
For the issuance of an Erbschein, it is mandatory that at least one of the heirs - under special circumstances also the executor as named in a South African will - applies for the certificate by providing an affidavit/declaration in lieu of oath. This application may be filed with the Nachlassgericht directly (if there are heirs in Germany), a German “Notar” (notary public) or through the German Missions abroad. The applicant usually applies in the name and on behalf of all heirs. He/she does not need a power of attorney to apply in their names.
Declaration of Renouncement of Inheritance
According to German law, the heirs may renounce their inheritance to the German Surrogate's Court within six weeks; if the heirs live outside of Germany, within six months after receiving knowledge about the inheritance case. The signatures on the declaration must be certified as a minimum requirement (signature certification). Both parents of minor children (one if it is a case of sole custody), must declare the renouncement of inheritance on the children’s behalf. The declaration of renouncement may be executed before the consular officer at the competent German Mission or
a honorary consul.
How to obtain a Certificate of Heirship
1. The applicant must provide all information necessary in advance to enable the German Missions to draft a formal application. Therefore, please use the prepared questionnaire. We recommend that you enclose copies of all documents proving the right to inherit: last will of the deceased person, death certificates, birth certificates, marriage certificates etc. of all persons concerned. Please note that all South African documents must be presented in the unabridged version. In case a last will was finalized in South Africa, the original is usually kept by the Master of the High Court. Therefore, a Probate Decree issued by the Master of the High Court (including a certified copy of the will) is required. In addition, all South African documents must be confirmed by an “apostille”.
2. The German Mission will prepare the application document and contact the applicant as soon as the application is drafted to set up an appointment for the applicant to appear at the German Mission and sign the document in due form. As German is the official language in Germany, the text of the application will be put forward only in German. If the applicant does not understand German, the consular officer will explain the contents of the paper to the applicant and translate it orally. If he/she would like an English translation of the application, the applicant will be responsible for all costs incurred for the translation. The German Embassy recommends that the applicant present all the original documents of which copies were provided with the questionnaire during this appointment. The German Mission will notarize the copies, so the Nachlassgericht in Germany receives a complete application with the pertinent documents enclosed.
3. The applicant will receive the original and a first certified copy of the application. The original should be kept by the applicant, the first certified copy should be sent to the competent Nachlassgericht or the applicant's representative in Germany who will then forward it to the Nachlassgericht.
4. After having received the application, the Nachlassgericht will issue the Erbschein and forward it to the person named as recipient in the application.
In the course of the application, two fees will apply:
- The German Mission will charge a fee for the preparation of the application, including the affidavit. The minimum fee is 30 Euro,to be paid in South African Rand in cash or by credit card (Master and Visa cards only) according to the actual daily exchange rate.
- Fees are based on the value of the estate. The applicant is required to provide detailed information about the value of the estate in Germany. (Please contact the land register ('Grundbuchamt') in Germany or your lawyer for further details regarding the value of real property.)
Additional Information in Restitution Matters
In restitution cases, the application for a certificate of inheritance has a standard fee of 30 Euro or 45 Euro if the applicant does not speak German. The Erbschein will be issued by the Nachlassgericht free of charge only if it is sent directly to the German office dealing with the restitution claim ('Landesamt/Amt zur Regelung offener Vermögensfragen, abbreviated as LAROV or AROV). A notarised copy of the certificate however, may be sent to a representative or to the applicant.