Introduction to Inheritance Law
Inheritance law forms the legal basis for the distribution of the assets of a deceased person and regulates who qualifies as an heir and how the estate is divided. In Germany, inheritance law is comprehensively regulated in the Civil Code (BGB). It details how succession proceeds, the rights and obligations of heirs, and how wills or inheritance contracts can be designed.
A central element in inheritance law is determining the deceased’s habitual residence. This aspect is crucial for the jurisdiction of the probate court and the application of the respective national law. Especially in international inheritance cases, where the decedent leaves assets in several countries or had their main residence abroad, the EU Succession Regulation (Regulation (EU) No. 650/2012) plays a significant role.
Within the framework of this regulation, the European Certificate of Succession (ECS) was introduced. The ECS enables heirs to easily prove their legal status and claims to the estate in other EU member states. This greatly facilitates cross-border inheritance procedures and strengthens the rights of heirs within the European area. The regulation ensures that heirs of a deceased person can assert their claims equally in Germany and other EU countries without having to undergo cumbersome national procedures.
Legal Foundations
The legal foundations for inheritance law in Germany are found in the Civil Code (BGB) as well as in the EU Succession Regulation. Regulation (EU) No. 650/2012 has governed since August 17, 2015, the jurisdiction of courts, the applicable law, and the recognition of decisions in cross-border inheritance matters within the EU. It applies in almost all EU member states, except Denmark and Ireland, and ensures uniform regulation in international inheritance cases.
In Germany, courts, especially the Higher Regional Court (OLG) Saarbrücken, play a central role in resolving questions concerning inheritance law and jurisdiction in inheritance matters. The Saarland Higher Regional Court, located in Saarbrücken, is the highest ordinary court in Saarland and decides in many cases on the application of the EU regulation and the interpretation of German inheritance law.
The close interlinking of national law and European regulation guarantees that heirs can effectively enforce their rights both in Germany and in other EU states. The OLG Saarbrücken significantly contributes to legal clarity and the uniform application of the regulation through its rulings and is thus an important actor in the field of international inheritance law.
OLG Saarbrücken: Objections Must Be Substantiated
In cross-border inheritance cases, various issues must regularly be clarified. It must be determined which national inheritance law applies and which court has jurisdiction. For heirs, it is also important to be able to prove their status as heirs abroad. The European Succession Regulation (EuErbVO) provides for the European Certificate of Succession in this context. The OLG Saarbrücken clarified the scope of this instrument and the requirements for third-party objections in the issuance process by decision of January 29, 2025 (file no. 5 W 50/24). At the Higher Regional Court Saarbrücken, the responsibilities of the senate and judges become clear, whereby the court, as a higher instance, decides on the legality of applications, and its judgments are decisive for further proceedings.
Similar to the German certificate of inheritance, the European Certificate of Succession serves to prove heir status to authorities and third parties. The ECS is considered a strong evidentiary document and is recognized in all EU member states except Denmark and Ireland. Various documents are required for the application, including the submission of certificates, notarization, certified copies, a valid identity card or passport. Eligible persons, particularly co-heirs, must provide precise information in the application and make a sworn affidavit; additionally, death certificates, birth certificates, and land register extracts must be presented. Fees apply for issuing the certificate, all documents must be submitted completely, and the correct sections of the form must be observed. Applications can also be submitted via a dedicated website, with the probate court providing extensive information on the necessary steps. Each case is reviewed individually, with the regional court acting as a subordinate instance and judgments of the Higher Regional Court Saarbrücken playing a central role. Notarization, submission of documents, and filing take place at the notary public or probate court. In certain cases, criminal proceedings related to estate matters are also possible, with the OLG Saarbrücken responsible for review and decisions. If an objection is raised against the issuance, the probate court cannot issue the document, and the decision then lies with the competent Higher Regional Court, according to the law firm MTR Legal Rechtsanwälte, which advises, among other areas, on inheritance law.
German Decedent with Residence in France
In the underlying case before the Higher Regional Court of Saarbrücken, the deceased was a German citizen but had most recently lived predominantly in France, where he also had a residence and real estate. He had three children from a divorced marriage. Since the deceased had not made a will, two children applied for a European Certificate of Succession, which identifies them as heirs according to the statutory order of inheritance. In submitting the application for the European Certificate of Succession, various documents such as the death certificate, birth certificate, identity card or passport, land register extract, and other certificates are required. The submission of certified copies and the notarization of the information by a notary or probate court may be necessary to confirm the accuracy of the details. Particularly important is the submission of a sworn affidavit containing information about the entitled co-heirs, as well as the individual examination by the court to clarify the applicants’ status as heirs. Fees are incurred for the application, submission of documents, and use of the official website for information and forms. The submission of documents must be done in specific sections of the form, and submission of death certificates and other documents is possible in various languages. However, the third child had concerns because a woman had come forward claiming to be the mother of another child of the deceased. The competent probate court therefore rejected the application, stating that the applicants’ heir status had not been sufficiently clarified.
The children filed a complaint against this decision and were successful. The Higher Regional Court of Saarbrücken overturned the probate court’s refusal and instructed it to issue the European Certificate of Succession. The objection raised by the party involved was not considered valid as it was based on mere hearsay and contained no substantial evidence, according to the Higher Regional Court.
Ordinary Residence is Decisive
Initially, the Higher Regional Court of Saarbrücken determined that German courts had jurisdiction. In cross-border succession matters, the “ordinary residence” of the deceased at the time of death is the decisive criterion for jurisdiction under the European Succession Regulation. The “ordinary residence” is determined by a comprehensive assessment of the life circumstances, including the duration of stay, family and social ties, economic activities, language skills, and integration. For determining ordinary residence, especially the length of stay, social ties of the persons involved, and the area where their center of life is located are crucial. Furthermore, national provisions, the option to choose applicable inheritance law, and the rules of the EU regulation must be considered as they determine the legal consequences for the succession and estate administration. In the present case, although the deceased had a residence in France, his income was predominantly generated in Germany, and he was also taxed there. Moreover, he was socially, familiarly, and linguistically integrated in Germany, while his contacts in France lacked substantial connections. Therefore, despite the residence, there was no strong link to France, and the actual center of life was in Germany, according to the Higher Regional Court. Hence, German courts had international jurisdiction.
The core issue of the hearing was whether a European Certificate of Succession can be issued even if there might still be another heir. The probate court had rejected the application based on this objection.
Not Every Objection Prevents the Issuance of the European Certificate of Succession
The Higher Regional Court of Saarbrücken did not share this view. It emphasized that not every objection automatically prevents the issuance of the European Certificate of Succession. The decisive factor is whether the objections are substantial and suitable to seriously question the heir status. Mere claims or rumors are not sufficient. In the specific case, the telephone statement of an unknown woman was completely unsubstantiated. Neither official proof nor other indications were provided. Therefore, there was no reason not to recognize the applicants as heirs. The European Certificate of Succession must therefore be issued, the Higher Regional Court ruled.
The European Certificate of Succession serves to simply prove heir status in cross-border cases within the EU. This can be important, for example, when transferring real estate or claiming bank balances.
The Higher Regional Court of Saarbrücken made it clear that objections to the issuance of a European Certificate of Succession must be taken into account. However, they are only significant if they are substantiated and raise serious doubts.
MTR Legal attorneys provide comprehensive advice on inheritance law and international inheritance law.
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