According to German law, the estate located in Germany of a decedent underlies the principle of "universal succession," meaning that the heirs become owners of the decedent's estate upon his death. The succession is determined either by law or by disposition in contemplation of death. (The executor or trustee of an estate is basically unknown to German law.)
However, heirs have to prove their title of succession by a Certificate of Inheritance ("Erbschein") which is required for the heir(s) to dispose of real estate or bank assets. It is issued by a German surrogate's court ("Nachlassgericht"). This court is usually located at the last residence of the decedent or, if the decedent had no residence in Germany, it is determined by the location of assets of the estate.
For the issuance of the Erbschein, at least one of the heirs (under special circumstances also the executor or the trustee named in an American will) must apply for the certificate by giving 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) 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.
How to obtain a Certificate of Heirship
1. The applicant has to complete a questionnaire provided by the German Embassy/Consulate General in order to enable the Embassy to draft a formal application. The Embassy will want copies of all documents proving the right to inherit (e. g., last will, letters testamentary, death certificates, birth certificates, marriage certificates etc.).
2. The Embassy will prepare the application document and then contact the applicant to appear at the Embassy to sign the completed document. As German is the official language in Germany, the text of the application will be only in German. If the applicant does not understand German, the consular agent will explain the contents of the paper to the applicant and translate it orally. If he/she wants to have an English translation of the application, the applicant will be responsible for all costs incurred by a translation.
The Embassy recommends that the applicant shows all the original documents of which copies were provided with the questionnaire during this appointment. The Embassy 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 in the applicant's possession, 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 process, two fees will apply:
The Embassy will receive a fee for preparing the application including the affidavit. The fee is to be paid in cash or by money order to the cashier of the Embassy at the day of the signing of the application. Upon prior confirmation, personal checks may be accepted in particular cases, while Credit Cards are not accepted.
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 on 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 Euro 30,‑ or Euro 45,‑ 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: LAROV or AROV). A notarized copy of the certificate however may be sent to a representative or to the applicant himself/herself.