We think you have liked this presentation. If you wish to download it, please recommend it to your friends in any social system. Share buttons are a little bit lower. Thank you!
Presentation is loading. Please wait.
Published byEthen Bunn
Modified about 1 year ago
© BridgehouseLaw Munich GmbH Privileged & Confidential Inheritance Law in German-American cases March 16 th 2012 Sofitel San Francisco Bay Oliver Bolthausen, LL.M. (USA) Rechtsanwalt, FCIArb (UK)
© BridgehouseLaw Munich GmbH Privileged & Confidential 2 General Principles in German law The estate is subject to the principle of “universal succession”. The succession is determined either by legal succession or by succession in accordance with a disposition by the decedent (will).
© BridgehouseLaw Munich GmbH Privileged & Confidential 3 Intestacy/Legal Succession (I) Legal succession comes into effect if the decedent did not make a will. If there are more relatives a system of different classes of heirs applies.
© BridgehouseLaw Munich GmbH Privileged & Confidential 4 Intestacy/Legal Succession (II) Classification of Statutory heirs: 1 st class are the children and lineal descendants (grandchild, great-grandchild) of the deceased. 2 nd class are the parents of the decedent and their lineal descendants (siblings, (grand)nephew/niece) 3 rd class are the grandparents of the decedent and their lineal descendants (uncle/aunt, cousin). 4 th class are the great-grandparents of the decedent and their lineal descendants (great uncle/aunt). 5 th and subsequent classes are the remoter ancestors of the decedent prior to the great-grandparents
© BridgehouseLaw Munich GmbH Privileged & Confidential 5 Overview -succession 2. Class 3. Class Grandfather Grandmother Aunt/Uncle Cousin Grandfather Grandmother Aunt/Uncle Cousin FatherMother Brother/Sister Nephew/Niece Brother/Sister Nephew/Niece Decedent Daughter/Son Grandchild Great-grandchild 1. Class 3. Class
© BridgehouseLaw Munich GmbH Privileged & Confidential 6 Intestacy/Legal Succession (III) Treatment of statutory heirs: Heirs of a foregoing class exclude potential heirs of a higher class. Among the classes of statutory heirs, the principle of representation per stripes applies.
© BridgehouseLaw Munich GmbH Privileged & Confidential 7 Samples of heirs treatment D B 1/3 C 1/3 E 1/3 GH D B 1/3 C 1/3 E 1/3 GH D B 1/3 C E 1/3 GH 1/6 1/6 A B С F ½ M E D G H ¼ ¼ ½ F M
© BridgehouseLaw Munich GmbH Privileged & Confidential 8 Inheritance between spouses The inheritance between spouces is regulated spreatly. The distributive share differs, depending on who else is a heir and depending on the matrimonial property regime.
© BridgehouseLaw Munich GmbH Privileged & Confidential 9 Samples – Inheritance between spouses ¼ ¼ S ½ 1/8 1/8 1/8 1/8 S ½ 1/8 1/8 1/8 S ½ + 1/8 D Children 1. Class S ¼ BUT: Consider anomalies in property regime! ¾ FMFM D E C G H O F M D E C G H O F M D
© BridgehouseLaw Munich GmbH Privileged & Confidential 10 Testacy/Succession with Disposition by Decedent Under German law, a last will can be made as: individual will joint will; or testamentary contract.
© BridgehouseLaw Munich GmbH Privileged & Confidential 11 Will The decedent has to make a holographic will. In the U.S., each state has its own inheritance laws and depending on the states, a holographic might be invalid! In the will, the decedent can name his beneficiaries. In addition he may include a general bequest, meaning that the beneficiary has a contractual civil claim against the heirs.
© BridgehouseLaw Munich GmbH Privileged & Confidential 12 Compulsory /legitimate Portion If a descendant (children – class 1), the parents (if no children otherwise class 1, or the spouse of the testator are excluded from succession by will or contract of inheritance, they are entitled to payment by the heir of a compulsory portion. In the US no compulsory portion concept is given.
© BridgehouseLaw Munich GmbH Privileged & Confidential 13 Acceptance of Inheritance With the application for the Certificate of Inheritance, the heir indicates the acceptance of the inheritance. The heirs, however, have to prove their title of succession. Hence, the heirs have to apply for a Certificate of Inheritance, which is called “Erbschein” in Germany. This document is issued by a German probate court (“Nachlassgericht”). Competent court is the one located at the last residence of the decedent. If the decedent did not have his/her last residence in Germany proper jurisdiction is established by the location of assets of the estate.
© BridgehouseLaw Munich GmbH Privileged & Confidential 14 Renouncement of Succession Within six weeks (six month in case the heirs are living outside of Germany) after knowledge of the death of the decedent, the heirs can declare the renouncement of succession to the German probate court. If the heirs do not notify the probate court within six weeks (six months), the inheritance is considered accepted. Therefore, the estate should be audited carefully.
© BridgehouseLaw Munich GmbH Privileged & Confidential 15 International Aspects (I) If the deceased/testator –has another (not German) nationality –Is living outside Germany –His will was consitituted outside Germany –If his estate/inheritance (in total or part) is outside Germany
© BridgehouseLaw Munich GmbH Privileged & Confidential 16 International Aspects (II) USA - Germany –Inheritance law is state law thus there are 50 different laws –In contrast to Germany (applicable law follows nationality Art. 25 I EGBGB), the U.S. distinguishes between i) personal /movable estate (among other things: cash at bank, bonds and shares) and ii) immovable parts of an estate (real estate). The applicable law is following in case of i) the domicile or in case of ii) the location of the asset.
© BridgehouseLaw Munich GmbH Privileged & Confidential 17 International Aspects (III) Germany exception for German national - Real estate, (Art. 3 II EGBGB) acceptance of priority of US law at the place of the asset (Consequence e.g. = also no mandatory/compulsory/legitimate portion). USA is not a party to the Convention of 5 October 1961 on the Conflicts of Laws Relating to the Form of Testamentary Dispositions, thus form and recognition differs internationally and on US state level Issues with regards to holographic wills as well as wills constituted without witnesses might occur.
© BridgehouseLaw Munich GmbH Privileged & Confidential 18 International Aspects (IV) It might be advisable to draft a German will as well as a U.S. will related to any assets located in each country. This can reduce the duration of the probate in the US. Further since, conflict of laws issues can be avoided. Inheritance/estate law in the U.S is governed under state law, conflict of laws between the 50 different states applies. The decedent should therefore stipulate which state law shall apply. Otherwise the differences among the state laws can cause unwanted results.
© BridgehouseLaw Munich GmbH Privileged & Confidential 19 Case Study (I) Facts: German decedent with last residence in the U.S. Heirs/beneficiaries in Germany as well as in the U.S. Real estate in Germany Life insurance in the U.S.
© BridgehouseLaw Munich GmbH Privileged & Confidential 20 Case Study (II) Which law applies (US versus Germany)? Initial legal analysis and questions: Is there a will? Nationality of the decedent? (Nationality of the heirs or beneficiaries is not relevant.) Location of the assets of the estate? (personal versus real estate)
© BridgehouseLaw Munich GmbH Privileged & Confidential 21 Case Study (II) Scenario I - German will: The life insurance in the U.S. is regarded as a personal estate therefore U.S. courts will accept the German law. Insurance policies, however, are considered a “non-probate” asset if the policy holder has designated a beneficiary of the policy. If so, the proceeds of the policy are paid to the beneficiary, and probate law does not apply – neither U.S. nor German. The German will is sufficient for the real estate in Germany. Certificate of Inheritance will be issued.
© BridgehouseLaw Munich GmbH Privileged & Confidential 22 Case Study (III) Scenario 2 - U.S. will: U.S. law applies regarding the life insurance which is handled as described above. Regarding the real estate in Germany a Certificate of Inheritance is required to dispose of real estate. It is issued by a German probate court; proper jurisdiction is determined by the location of the assets of the estate. The decedent can stipulate that German law shall apply regarding the real estate in Germany. Typically, a U.S. will does not completely control the disposition for real property located in Germany. A German court might accept the disposition under the will, but the forced heirship rules of German law will also apply (compulsory portion).
© BridgehouseLaw Munich GmbH Privileged & Confidential 23 For more information please contact our offices in Atlanta, Cologne and Munich: BridgehouseLaw Cologne GmbH Habsburgerring 2 WESTGATE Cologne Germany T: +49 (0) F: +49 (0) E: BridgehouseLaw Munich GmbH Karlstrasse 35 “Karlshoefe” Munich Germany T: +49 (0) F: +49 (0) E: BridgehouseLaw Atlanta Rueckel & Bolthausen LLC 1170 Peachtree Street, N.E. Suite The Proscenium Atlanta, Georgia U.S.A. T: F: E: BridgehouseLaw Bridging the expertise
58 th UIA Congress, Florence 29 October – 2 November 2014 Succession Planning Andreas Otto Kühne Rechtsanwalt Fachanwalt für Erbrecht BonnMünchen Rheinwerkallee.
Characteristic Features of Succession Law in the Baltic States, Austria and Germany Ilze Metuzāle, Notary 09/05/2014.
Turkish private international law on matrimonial property and successions Zeynep Derya TARMAN Koç Üniversitesi Hukuk Fakültesi
Chapter 11 Estate Administration. Wills, Trusts, and Estates Administration, 3e Herskowitz 2 © 2011, 2007, 2001 Pearson Higher Education, Upper Saddle.
WILLS AND INHERITANCE. INHERITANCE LAW or LAW of SUCCESSION or WILLS AND PROBATE - a branch of civil law concerned with the distribution of a person’s.
Wills, Trusts, and Living Wills Business Law.
© 2007 Prentice Hall, Business Law, sixth edition, Henry R. Cheeseman Chapter 52: Wills, Trusts, and Living Wills Chapter 52: Wills, Trusts, and.
The Probate Process. Probate – the legal process through which a decedent’s assets, that are not automatically transferred at death to their “rightful”
Wills and Trusts. Estate Planning Estate Planning and Probate involves planning for the distribution of property after death and the mechanics of how.
Copyright © 2009 by Pearson Prentice Hall. All rights reserved. PowerPoint Slides to Accompany CONTEMPORARY BUSINESS AND ONLINE COMMERCE LAW 6 th Edition.
Canadian Islamic Wills AR Law Areesha M. Raja Barrister & Solicitor.
1. What law applies? Personal property = intestate’s domicile at death Real property = situs of real property.
Transfers at Death Wills February 14, 2008 Rachel Kirk.
© 2007 ME™ (Your Money Education Resource™) Estate Planning for Financial Planners Chapter 4: The Probate Process.
General rule: Succession includes private rights and duties do not includes public law obligations (criminal penalties, fines, administrative fees etc.)
Legal Readiness Brief Staff Judge Advocate 180th Fighter Wing Swanton, Ohio.
THE LEGAL LANDSCAPE OF THE LAW OF INHERITANCE APPLYING TO EXPATRIATES: An Overview and Practical Aspects Prepared and Presented by Adv. Samir A. Salloum.
© 2004 West Legal Studies in Business A Division of Thomson Learning 1 Chapter 51 Wills, Trusts, and Elder Law Chapter 51 Wills, Trusts, and Elder Law.
Chapter 46 Wills and Trusts. 2 What are the basic requirements for executing a will? How may a will be revoked? What is the difference between a.
© 2010 Pearson Education, Inc., publishing as Prentice-Hall 1 WILLS, TRUSTS, AND ELDER LAW © 2010 Pearson Education, Inc., publishing as Prentice-Hall.
WHAT IS TRANSFER OF PROPERTY IN GENERAL? GENERAL PRINCIPLES OF GERMAN PROPERTY LAW TRANSFER OF MOVABLES ACCORDING TO BGB TRANSFER OF IMMOVABLES ACCORDING.
Estate Planning Wills Wills Trusts Trusts Insurance Insurance Class 8.
Copyright © 2004 by Prentice-Hall. All rights reserved. PowerPoint Slides to Accompany BUSINESS LAW E-Commerce and Digital Law International Law and Ethics.
Unit 7: Wills, Estates, and Trusts. Wills Will provides for a Testamentary disposition of property. –A will is the final declaration of how a person desires.
Preparing for the EU Succession Regulation Regulation (EU) No. 650/2012 of 4 July 2012 The new setup for cross-border estate planning Luxembourg, 20 January.
Swiss-UK cross-border Estate Planning David Wallace Wilson FOSSUK Retirement and Estate Planning.
Chapter 38 Insurance, Wills and Trusts. 2 What is an insurable interest? When must an insurable interest exist? Is an insurance broker the agent of.
25-1 Chapter 52 Wills, Trusts, and Estates. Learning Objectives List and describe the requirements for making a valid will Describe the different.
Succession Law in the United Kingdom By: Veronika Virkenborg.
© 2003 The McGraw-Hill Companies, Inc., All Rights Reserved Chapter 15 Estates And Trusts.
Chapter 24 Wills, Estates, and Trusts Lesson 6-1 Legal Consequences of Death.
Wills and Inheritance Unit 24. Preview Definitions: inheritance, will Definitions: inheritance, will Conditions for a valid will: form, substance Conditions.
Documents: Wills Duke Legal Project. Purposes of a will Transfer property Name an executor to handle transfer of property Name a guardian for minor children.
Wills, Trusts and Estates Chapter 14. Terminology Decedent – the one who dies Heirs – the persons who take property from the decedent when the decedent.
BUSINESS LAW Objective 5.02: Understand Retirement Planning, Death Benefits, Disability and Wills and Estate Planning. BB30 Business Law 5.02Summer 2013.
Chapter 1 The Estate Plan and the Purpose and Need for a Will.
Estate Planning Intestate Succession Intestate Succession Wills Wills Trusts Trusts Class 9.
$1 Million $500,000 $250,000 $125,000 $64,000 $32,000 $16,000 $8,000 $4,000 $2,000 $1,000 $500 $300 $200 $100 Welcome.
Managing for Today and Tomorrow Business, Succession, Retirement and Estate Planning for Farm and Ranch Women Methods of Asset Transfer Sale Gift Estate.
Chapter 1: Legal Ethics 1. © 2013 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part, except for use.
Estate Planning Basics Melissa Dalla, Esq. Dufford & Brown, P.C Broadway, Suite 2100 Denver, CO (303)
26-1 Copyright © 2013 by The McGraw-Hill Companies, Inc. All rights reserved.McGraw-Hill/Irwin.
Chapter 9 Administration of the Estate. Initial Responsibilities Arrangements for the Funeral Notifying Relatives and Close Friends Protect and Preserve.
Wills and Inheritance. Area of law? inheritance law/ law of succession/ wills and probate VERBNOUNADJECTIVE To inheritinheritanceInheritable To succeedsuccessionSuccessive.
© Cavico & Mujtaba, 2008 Business Law for the Entrepreneur and Manager Frank Cavico and Bahaudin G. Mujtaba Chapter 15 – Wills and Trusts.
Persons related in ascending lineal line. Parents Grandparents Great-grandparents etc.
European Enforcement Order for uncontested claims JUDr. Radka Chlebcová.
Special Elections And Post Mortem Planning. Estate Planning after Death o Decisions made on the estate that Impact heirs Impact taxes Impact executor.
© 2017 SlidePlayer.com Inc. All rights reserved.