Erbschein

What Is Erbschein?

An Erbschein is an official certificate issued in Germany that legally identifies an Erbe or Miterbengemeinschaft and specifies their share of an Erbschaft. It serves as proof of heirship, establishing who has succeeded the deceased in their legal position. This document is crucial within the broader context of Nachlassplanung, as it clarifies the legal succession to the deceased's Vermögenswerte and Verbindlichkeiten. While inheritance occurs automatically upon death, the Erbschein provides the necessary legitimation for heirs to interact with third parties, such as banks, land registries, or other institutions, regarding the deceased's assets.

History and Origin

The concept of formally proving heirship gained significant structure with the codification of civil law. In Germany, the Erbschein is deeply rooted in the Bürgerliches Gesetzbuch (BGB) (German Civil Code), which came into effect on January 1, 1900. Prior to this comprehensive legal framework, practices for proving succession varied. The BGB, particularly Sections 2353 to 2370, established the Erbschein as the official instrument for confirming heirship and its scope, providing a standardized and legally binding method. This standardization was essential for legal certainty in increasingly complex financial and property transactions. The introduction of the Erbschein aimed to create clarity in legal commerce by providing a publicly credible document that unequivocally identifies the rightful heir(s).

Key Takeaways

The Erbschein is an official German certificate proving who is the legal heir(s) of a deceased person.
It is issued by the Nachlassgericht (probate court) upon application.
An Erbschein is often required to access or manage the deceased's assets, especially for Immobilien and Bankkontos.
While it creates a presumption of correctness, the Erbschein is not a final judgment and can be challenged if found to be incorrect.

Interpreting the Erbschein

The Erbschein establishes a legal presumption that the person(s) named in it are the legitimate heir(s) and that their stated share of the inheritance is correct. This "public faith" or "public trust" effect, enshrined in German law, means that third parties can generally rely on the information contained within the Erbschein when conducting transactions with the presumed heir. For example, if an Erbschein indicates a sole Erbe, banks and other institutions can transfer assets to this individual without further extensive verification. However, it is important to understand that while the Erbschein provides a strong legal presumption, it does not definitively determine the true legal situation of the inheritance. If, for instance, a later discovered Testament or other evidence contradicts the Erbschein, the document may be declared invalid and withdrawn by the Nachlassgericht.

Hypothetical Example

Consider Maria, whose grandmother recently passed away in Germany. Maria knows she is her grandmother's only legal Erbe according to statutory inheritance law, as there was no Testament. To access her grandmother's Bankkonto and transfer the ownership of an apartment, Maria needs formal proof of her heirship. She applies to the local Nachlassgericht for an Erbschein.

Step-by-step:

Maria gathers the necessary documents: her grandmother's death certificate, her birth certificate (to prove her relation), and her grandmother's marriage certificate.
She submits an application for a sole Erbschein to the Nachlassgericht, providing the required information and affirming the accuracy of her statements under oath.
The court reviews the application and supporting documents.
After verification, the Nachlassgericht issues the Erbschein, confirming Maria as the sole heir.
With the Erbschein, Maria can now present it to the bank to access her grandmother's accounts and to the Grundbuch office to register the apartment in her name.

Practical Applications

The Erbschein is a vital document in several practical scenarios within Nachlassplanung and financial administration. Its primary use is to legitimize heirs against third parties. For instance, when dealing with financial institutions, an Erbschein is frequently requested to enable heirs to manage the deceased's Bankkontos, investment portfolios, or other Vermögenswerte. Similarly, for real estate, the Erbschein is often indispensable for changing the ownership entry in the Grundbuch when Immobilien are part of the inheritance. This ensures legal certainty for all parties involved in transferring property or accessing funds. In many cases, the Erbschein enables heirs to conduct necessary transactions related to the estate, such as selling assets or settling Verbindlichkeiten, facilitating the smooth administration of the estate. While a notarized will can sometimes suffice, especially for banks, an Erbschein is typically required for real estate transactions to update the land register.

#³# Limitations and Criticisms

Despite its utility, the Erbschein has certain limitations and can sometimes be a point of contention. One common criticism is the cost involved, which is based on the value of the estate, potentially making it an expensive document for large inheritances. Another limitation is that the Erbschein does not create heirship; it merely certifies it. If the underlying facts of heirship are incorrect (e.g., a hidden Testament comes to light), the Erbschein can be revoked. This can lead to complex Rechtsstreitigkeiten where parties challenge its validity. The process of obtaining an Erbschein can also be time-consuming, especially in cases where the inheritance situation is unclear or contested, or when extensive investigations are required by the Nachlassgericht. Such disputes in the Erbschein procedure can arise from questions about the validity of a will, the authenticity of a signature, or the interpretation of unclear testamentary provisions. Wh²ile it serves as a powerful instrument for legal certainty, its issuance can sometimes inadvertently facilitate actions by an individual who is presumed to be an heir but later turns out not to be the true one. The Justiz.NRW portal notes that despite the "public faith" effect, the Erbschein does not prevent eventual challenges.

#¹# Erbschein vs. Testament

While both the Erbschein and a Testament relate to the transfer of assets upon death, they serve distinct purposes. A Testament (will) is a unilateral legal declaration made by the deceased (the testator) outlining their wishes for the distribution of their estate. It is the source of the intended inheritance. An Erbschein, conversely, is an official certificate issued by the Nachlassgericht that confirms the heirship, either based on a valid Testament or, in its absence, on statutory inheritance law.

The key differences are:

Nature: A Testament is a private legal document; an Erbschein is a public legal document.
Purpose: A Testament dictates how assets are to be distributed; an Erbschein proves who is entitled to receive them.
Necessity: While a Testament is a means of determining inheritance, an Erbschein is often required as proof of heirship, especially when a private, handwritten will exists or if there is no will at all. A notarized Testament with an official opening protocol can sometimes substitute for an Erbschein for certain transactions (e.g., at banks), but for transferring Immobilien in the Grundbuch, an Erbschein is frequently required unless the notarized will explicitly names the heir for the specific property.

FAQs

What is the primary purpose of an Erbschein?

The primary purpose of an Erbschein is to officially certify who is the legal Erbe or heirs of a deceased person and to what share of the Erbschaft they are entitled. It acts as a formal legitimation for heirs to deal with the deceased's assets, especially with banks and land registries.

Is an Erbschein always necessary after a death?

No, an Erbschein is not always necessary. If a notarized Testament or a notarized inheritance contract clearly identifies the heir(s) and their shares, and this is accepted by the institutions involved (e.g., banks, though often not for Grundbuch entries), an Erbschein might not be required. However, in cases of statutory inheritance, handwritten wills, or unclear testamentary dispositions, an Erbschein is usually essential to prove heirship.

Where can one apply for an Erbschein?

An Erbschein must be applied for at the competent Nachlassgericht. This is typically the local district court (Amtsgericht) in whose district the deceased had their last ordinary residence. The application can also be submitted through a notary.

How long does it take to get an Erbschein?

The duration for obtaining an Erbschein can vary significantly. Simple cases with clear statutory inheritance and complete documentation might take a few weeks or months. However, if there are complexities such as unclear family relationships, missing documents, foreign heirs, or Rechtsstreitigkeiten about the validity of a Testament or the identity of heirs, the process can take many months or even years.

What happens if the Erbschein is incorrect?

If an Erbschein is later found to be incorrect (e.g., due to the discovery of a new Testament or a factual error in the determination of heirship), the Nachlassgericht is legally obliged to revoke or invalidate it. The genuine heir can then apply for a correct Erbschein. Transactions conducted in reliance on the incorrect Erbschein by third parties acting in good faith may be protected by law, highlighting the "public faith" aspect.