Tue, Mar. 23, 2004

Collection of Inheritance in Germany

CK - Washington.   The collection of German assets in an inheritance by an American estate often runs into confusing issues. Cases involving an executor, like the one decided by the German Supreme Court in IV ZR 28/03 of December 17, 2003, are the exception. The rule in Germany is that the assets of a deceased do not fall into an estate but title to the assets vests directly in the heirs. A multitude of heirs would jointly effect the distribution. A certificate of inheritance would prove the title held by the heirs.

Contrast this with the American approach of an estate becoming the owner of the assets until distribution and the appointment of a personal representative, executor or administrator responsible for the administration of the estate. Thus, German-American inheritance cases represent a classic clash of legal systems.

The American estate needs to jump through various hoops, often expensive ones, to collect assets located in Germany. The ownership may be simple, and the right to represent an estate may be clear, but transforming the American legal concepts into corresponding German concepts, for the purposes of proving ownership and representation and for ultimately collecting German assets, requires significant effort.

The collection of assets on deposit with German banks used to be fairly streamlined. But the world-wide rush to strenghten and enforce money-laundering and tax-evasion rules has banks scared of even the most slightly unaccustomed issue. As a result, banks apply a variety of procedures to ensure compliance and often require complex external and internal legal opinions and papers, from notarial documents to tax clearances, before releasing funds to American estates. In practice, this becomes a significant burden on the American estate. The only consolation may be that things are not simpler in the opposite direction, involving the collection of American assets for a German estate.

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