Succession proceedings govern the orderly transfer of a deceased person’s estate. They determine conclusively who inherits and to what extent. In particular, they establish the status of the heirs, the composition of the estate, and liability for estate obligations. The aim of the proceedings is to determine the succession with legal certainty and to settle the estate in an orderly manner. In this way, the proceedings provide legal certainty for both heirs and creditors.
Despite shared European foundations, in particular Regulation (EU) No 650/2012 of the European Parliament and of the Council on jurisdiction, applicable law, recognition and enforcement of decisions and acceptance and enforcement of authentic instruments in matters of succession and on the creation of a European Certificate of Succession, significant differences continue to exist between succession proceedings in Germany and the Czech Republic. A comparison of the two legal systems highlights the main similarities and differences and draws attention to the particular features that must be taken into account in cross-border succession cases involving both states.
Jurisdiction in Succession Proceedings
Germany
In Germany, the competent court for succession proceedings is the local court (Amtsgericht) acting as the probate court (Nachlassgericht).
The court with jurisdiction in a particular case is determined primarily by the deceased’s last habitual residence. The proceedings are generally conducted at that court.
If the deceased did not last reside in Germany, the last domicile in Germany is the relevant connecting factor. If this also cannot be established, the Local Court of Schöneberg in Berlin has jurisdiction in certain cases, in particular where the deceased was a German national or where estate assets are located in Germany.
The court with jurisdiction may also transfer the proceedings to another German probate court for good cause.
The tasks of the probate court include in particular:
- establishing the succession
- opening of wills
- processing applications for certificates of inheritance
- securing and administering the estate
Czech Republic
In the Czech Republic, succession proceedings are initiated before the competent court at the deceased’s last place of residence.
If that place of residence cannot be established, jurisdiction is determined by further statutory connecting factors, in particular the location of the estate assets.
The court does not conduct the proceedings itself but appoints a notary to act as a court commissioner. The notary acts on behalf of the court, conducts the proceedings and performs judicial acts in that capacity.
The notary is thus the central actor in the proceedings and is responsible in particular for:
- identifying the heirs and legatees
- establishing the estate assets
- clarifying whether an executor or estate administrator has been appointed
Mandatory Legal Representation in Succession Proceedings
Germany
German succession proceedings do not, as a rule, require mandatory legal representation. Many procedural steps, in particular the opening of a will or the filing of an application for a certificate of inheritance, may therefore be carried out without legal representation.
Mandatory legal representation may, however, apply in certain court proceedings, particularly where adversarial proceedings arise, such as actions for the determination of heirship or other civil disputes relating to the estate.
Legal assistance is particularly advisable in complex succession matters, where international elements are involved, or in disputes between heirs.
Czech Republic
The Czech Republic likewise does not, as a rule, require mandatory legal representation in succession proceedings.
The proceedings are generally conducted by a notary acting as court commissioner, so the parties frequently communicate directly with the notary.
Legal representation may, however, be advisable, particularly in cases involving complex asset structures, multiple heirs, or cross-border succession matters.
Securing the Estate
Germany
Where there is uncertainty as to the identity of the heirs, or where there is a risk of adverse changes to the estate, the probate court adopts appropriate protective measures. These include, in particular, the sealing of premises, the deposit of money and securities, and the appointment of an estate administrator. The purpose of these measures is to protect the estate and prevent the loss of assets.
Czech Republic
To secure the estate, the court may order appropriate measures. These include, in particular, the deposit of assets with the court or the court commissioner, the sealing of premises, payment prohibitions directed at banks, and orders requiring the testator’s debtors to make payments exclusively to the court.
Identification of Heirs and Opening of Wills
Germany
The probate court first determines who has become an heir.
If a will or inheritance contract exists, it is formally opened. The parties are informed of its contents and then decide whether to accept or disclaim the inheritance. The period for disclaiming the inheritance is generally six weeks. If this period is not observed, the inheritance is deemed accepted.
Wills may be deposited with the probate court or executed in notarial form. Notarial wills are automatically kept in official custody. Holographic wills are likewise opened after the testator’s death, provided they are found or were deposited with the court.
After the death of the testator, all wills must be submitted to the probate court. Their concealment, alteration, or destruction is prohibited and may give rise to criminal and civil liability.
The court determines the succession and informs the parties accordingly. Where there is uncertainty or a dispute concerning heirship, the matter may be conclusively resolved by means of a certificate of inheritance, which officially certifies the status of an heir. Where no disposition upon death exists in the form of a will or inheritance contract, the statutory rules of succession under the German Civil Code (Bürgerliches Gesetzbuch, BGB) apply.
Czech Republic
In the course of succession proceedings, it is first examined whether a disposition upon death exists, such as a will or an inheritance contract. If so, the document is taken into account in the proceedings and its contents are communicated to the heirs.
The identification of heirs is carried out by a notary acting as court commissioner, who, on behalf of the court, identifies persons potentially entitled to inherit and involves them in the proceedings.
Where no will or inheritance contract exists, the statutory rules of succession under Czech law apply.
Valid Execution of Wills
Germany
A will may be executed either holographically or in notarial form.
A holographic will is valid if the testator writes it entirely by hand and signs it. The testator should indicate in the will when and where it was written, i.e. the day, month, year, and place. The signature should contain the testator’s first and family name. However, another form of signature is sufficient if it clearly identifies the author of the will and demonstrates that it was intended seriously.
A notarial will is executed by a notary and officially certified by that notary.
Czech Republic
As in Germany, a will may be executed holographically or in notarial form. In addition, it is possible to execute a will that has not been written by hand by the testator. In such a case, the will must be personally signed by the testator, who must also expressly declare before two simultaneously present witnesses that the document contains his or her last will.
Multiple or Invalid Wills
Germany
Where several wills exist, the most recently executed will generally takes precedence. It is decisive that the will is valid and revokes earlier dispositions in whole or in part.
An earlier will remains valid only to the extent that it has not been amended or revoked by a later will.
A will may also be invalid or contestable, for example where doubts exist as to testamentary capacity or where formal or substantive defects are present. In such cases, validity is examined in separate proceedings.
If a will is wholly or partially invalid, the succession is governed to that extent by an earlier valid will or, where none exists, by the statutory rules of succession.
If only part of a will is invalid, the remaining provisions remain valid to the extent that they can stand independently.
Czech Republic
Where several wills are found, the notary acting as court commissioner examines their validity and chronological order.
As a general rule, the most recently executed valid disposition takes precedence. Earlier wills remain relevant only to the extent that they have not been revoked by later dispositions.
If a will proves to be wholly or partially invalid, it is disregarded in the succession proceedings in whole or in part. In such a case, either an earlier valid disposition applies or, where none exists, the statutory rules of succession govern.
Within the proceedings, the notary also examines whether doubts exist as to validity, for example due to formal defects or lack of testamentary capacity. The final assessment is reflected in the notary’s decision, which forms the basis for the further settlement of the estate.
Statutory Succession
Without a will or inheritance contract, the statutory rules of succession apply in both countries. The estate is distributed according to the degree of family relationship to the testator, although the two legal systems follow different structures:
Germany
- Class 1: children and their descendants
- Class 2: parents and their descendants
- Class 3: grandparents and their descendants
The spouse holds a special position and inherits alongside relatives according to statutory fixed shares.
Czech Republic
- Class 1: children and spouse (in equal shares)
- Class 2: spouse, parents and certain persons living in and maintained by the household
- Class 3: siblings and their descendants and other members of the household
- Class 4: grandparents
- Class 5: grandparents of parents (separated by paternal and maternal line)
- Class 6: more distant relatives (including descendants of siblings and further lines)
A particular feature is the possibility of multiple kinship, by virtue of which inheritance claims may arise through different lines.
Compulsory Share
Germany
If a close relative is excluded from the succession by will, that person may nonetheless be entitled to a compulsory share (Pflichtteil) under certain conditions.
The compulsory share amounts to one half of the statutory share of the estate and constitutes a purely monetary claim against the heirs. Persons entitled include, in particular, children, spouses, and, in certain cases, parents.
The compulsory share must be actively asserted, and statutory limitation periods must be observed. It may arise in cases of both complete and partial disinheritance.
Even where the inheritance is restricted, for example through prior and subsequent succession (Vor- und Nacherbschaft) or the appointment of an executor, the person entitled to the compulsory share may, under certain circumstances, disclaim the inheritance and instead claim the compulsory share.
When calculating the compulsory share, gifts made by the testator during his or her lifetime may also be taken into account, giving rise to so-called supplementary compulsory share claims (Pflichtteilsergänzungsansprüche).
A waiver of the compulsory share is possible but must be concluded in notarial form.
The entitlement to the compulsory share belongs primarily to the testator’s descendants, in particular the children. If they are unable to inherit, their descendants take their place.
For adult descendants, the compulsory share amounts to at least one quarter of the statutory share of the estate, and for minor descendants to at least three quarters of the statutory share.
As a matter of principle, the testator cannot exclude or restrict the compulsory share by will. Any provision to the contrary is ineffective.
Complete deprivation of the compulsory share is possible only in the exhaustively defined statutory cases through disinheritance.
The compulsory share does not confer the status of heir or a right to participate in the estate as such, but merely a monetary claim against the heirs in the corresponding amount.
Czech Republic
The compulsory share (povinný díl) under Czech law serves to protect close relatives who are excluded from the succession.
Persons entitled to the compulsory share are, in particular, the testator’s descendants. Adult descendants are entitled to at least one quarter of their statutory share, while minor descendants are entitled to a share corresponding to their full statutory entitlement.
The compulsory share must be actively asserted and is subject to statutory limitation periods.
The testator may restrict or deprive a person of the compulsory share only in the cases expressly provided for by statute.
Disinheritance and Unworthiness to Inherit
Germany
Disinheritance and unworthiness to inherit are two distinct legal institutions.
In the case of disinheritance, the testator decides that a person is not to be included in the will or inheritance contract. That person is thereby excluded from the succession but may, under certain circumstances, still retain a compulsory share claim.
Unworthiness to inherit, by contrast, is a statutory sanction. It arises independently of the testator’s wishes and results in a person being unable to inherit or to claim a compulsory share.
A person is deemed unworthy to inherit, in particular, if he or she has killed or attempted to kill the testator, placed the testator in a condition preventing the execution or revocation of a will, induced the testator by deception or threats to execute or revoke a will, or altered or destroyed a will or inheritance contract contrary to the testator’s wishes.
Unworthiness to inherit does not arise automatically but must, as a rule, be asserted by legal action. Any person benefiting from the exclusion of the unworthy heir has standing to bring such an action, in particular other heirs or overlooked beneficiaries. The testator himself or herself cannot assert unworthiness to inherit.
The action must be brought within one year from the date on which the claimant became aware of the relevant grounds.
If unworthiness to inherit is established, the person concerned is treated as though he or she had never become an heir. The estate then passes to the remaining heirs.
If the unworthy person has already received or used estate assets, this may give rise to restitution claims. These include, in particular, the surrender of assets still in existence, compensation for estate assets no longer available, and accounting for benefits or advantages received.
The testator may remove the unworthiness to inherit through forgiveness.
Czech Republic
Unworthiness to inherit arises by operation of law and results in a person being excluded from the succession.
It applies in particular in cases involving intentional criminal offences committed against the testator or persons close to him or her, reprehensible conduct contrary to the testator’s last wishes, domestic violence, or serious breaches of family duties, such as deprivation of parental responsibility.
Disinheritance, by contrast, is a conscious decision of the testator. It must be effected through a testamentary disposition and may be amended or revoked at any time.
The testator may disinherit persons entitled to the compulsory share, in particular where they failed to provide necessary assistance in a situation of need, show no genuine interest in the testator, have been convicted of certain criminal offences, or lead a persistently dissolute life.
Spouse’s Right of Inheritance
Germany
The precondition for the spouse’s statutory right of inheritance is the existence of a valid marriage at the time of the testator’s death.
A marriage no longer exists if it has been finally dissolved by divorce or annulment. In certain cases where divorce proceedings have already been commenced, the spouse’s right of inheritance may also be excluded, provided that the conditions for divorce were satisfied and the testator personally filed for divorce or consented to it.
In such cases, the right of inheritance ceases to exist. The spouse may, however, continue to have maintenance claims under certain circumstances.
The extent of the spouse’s statutory share is determined, in principle, by the statutory rules of succession and depends on which other relatives survive the testator.
The matrimonial property regime also plays an important role. If the spouses lived under the statutory matrimonial property regime of community of accrued gains (Zugewinngemeinschaft), the surviving spouse’s share is generally increased by a lump-sum equalisation of accrued gains.
If there are no heirs of the first or second class and no grandparents, the spouse inherits alone.
Czech Republic
Under Czech law, an inheritance contract may also be of significance for spouses, although, due to its statutory structure, it is concluded only in exceptional cases.
Divorce terminates the marriage but does not automatically result in the cancellation of an existing inheritance contract unless otherwise agreed.
Following divorce, however, a spouse may apply to the court for annulment of the inheritance contract. This right is not unrestricted. The court will reject such an application, in particular where it is directed against a spouse who does not bear sole responsibility for the breakdown of the marriage or who did not consent to the divorce.
Settlement and Distribution of the Estate
Germany
The settlement of the estate (Erbauseinandersetzung) is the process by which the estate is divided among several heirs.
It is required whenever a community of heirs exists, i.e. where several persons have jointly become heirs. Until the division of the estate, the heirs generally administer the estate jointly.
A community of heirs arises automatically upon succession where there is more than one heir. It continues until the estate has been fully settled and constitutes a form of joint ownership under which the estate remains collectively vested in the heirs until division.
The aim of the settlement is to terminate the joint administration and allocate to each heir his or her respective share of the estate.
The settlement generally commences after the opening of succession proceedings with the preparation of an inventory of all estate assets and liabilities, carried out by the heirs or, where applicable, by an estate administrator. The assets are then valued and distributed among the co-heirs in proportion to their respective shares.
The distribution may take place by mutual agreement among all heirs. If no agreement is reached, the settlement may also be enforced through court proceedings.
Distribution is effected either by allocating individual estate assets to specific heirs or by realising the assets and distributing the proceeds.
Individual assets, in particular real estate, often cannot be divided in a practical manner. In such cases, realisation, for example by way of a partition auction, is regularly considered. The proceeds are then distributed among the heirs.
Testamentary provisions or other dispositions upon death may contain specific instructions regarding distribution. Such so-called partition orders (Teilungsanordnungen) must be taken into account in the settlement, provided they were validly made.
Upon completion of the settlement, the community of heirs is dissolved. Each heir acquires ownership of the assets allocated to him or her and becomes their sole legal owner.
Czech Republic
After the heirs and the composition of the estate have been established, the further settlement of the estate takes place within the framework of the succession proceedings.
In the further course of the proceedings, the heirs are usually summoned to a hearing at which the estate is jointly examined. Both the assets and liabilities of the testator are determined. The heirs are informed of the extent of the estate and of their rights, including in particular the possibility of disclaiming the inheritance or limiting liability to the estate.
On the basis of these findings, the estate proceedings continue and the parties are informed of the further course of the proceedings.
The heirs may, in principle, distribute the estate among themselves by mutual agreement. If no agreement is reached, distribution is carried out in accordance with the statutory rules of succession or the dispositions upon death.
Finally, the court confirms the acquisition of the inheritance and conclusively determines the status of the individual heirs. This decision forms the basis for the subsequent allocation of assets.
Liability for the Obligations of the Estate
Germany
In Germany, the heir is liable for the obligations of the estate. These include, in particular, the testator’s own debts (e.g. contractual obligations, tax liabilities, or loan obligations), debts arising upon succession (e.g. funeral expenses, compulsory share claims, or legacies), and so-called estate administration debts arising in connection with the administration of the estate.
As a general rule, the heir is initially liable without limitation, including with his or her personal assets, once the inheritance has been accepted or the period for disclaimer has expired. Protection of personal assets may, however, be achieved through various legal mechanisms, in particular by disclaiming the inheritance or through liability-limiting measures such as estate administration, estate insolvency proceedings, or the plea of insufficiency of estate assets.
Additional time-limited protective mechanisms also exist, such as the three-month moratorium or the possibility of preparing an inventory of the estate.
Czech Republic
In the Czech Republic, the heir is, in principle, liable for the debts left by the testator as well as for reasonable funeral expenses. However, liability is not automatically limited to the value of the estate.
The heir may, however, limit his or her liability by invoking the reservation of an estate inventory and by inviting the testator’s creditors, through a notary, to register and substantiate their claims within a prescribed period. In such a case, the heir is generally liable only up to the value of the inherited estate. The relevant declaration must be made in due time during the succession proceedings.
In certain cases, an inventory of the estate is also prepared ex officio, in particular where heirs requiring special protection are involved, such as minors, absent or unknown heirs, or certain legal entities.
The limitation of liability ceases to apply if the heir provides incorrect information, conceals estate assets, or improperly mingles them with his or her own property.
In order to establish the obligations of the estate, creditors may be invited to register their claims in the proceedings. Legacies constitute a specific category of estate obligations; however, they do not confer the status of heir and do not result in liability of the legatees for estate debts.
Costs
Germany
Court costs and, where applicable, notarial fees are incurred in succession proceedings. Their amount is governed by the Court and Notary Costs Act (Gerichts- und Notarkostengesetz, GNotKG) and is generally determined by the value of the estate.
Czech Republic
Upon the conclusion of the succession proceedings, the notary’s fee becomes payable. Its amount is determined by the notarial tariff and likewise depends on the value of the estate.
Inheritance Tax
Germany
In Germany, the acquisition of assets upon death is, in principle, subject to inheritance tax.
Whether and to what extent inheritance tax is payable depends in particular on the degree of relationship to the testator and the value of the acquisition. Close relatives such as spouses and children benefit from substantial personal allowances, with the result that in many cases no tax or only a minimal amount of tax is payable.
Inheritance tax arises upon the testator’s death and the acquisition must be declared by the heir to the tax authorities.
The amount of tax is calculated on the basis of the market value of the acquired assets at the time of death. From this gross value, estate liabilities, funeral expenses, and the heir’s personal allowances may, in particular, be deducted. Only the remaining amount is subject to taxation.
Personal allowances are of central importance, as they determine the threshold above which tax liability arises. Their amount depends exclusively on the degree of relationship:
- Spouses and registered civil partners: EUR 500,000
- Children, stepchildren and adopted children: EUR 400,000 per child
- Grandchildren: EUR 200,000 (EUR 400,000 where parents have predeceased)
- Parents and grandparents (on acquisition by reason of death): EUR 100,000
- Other acquirers (e.g. siblings, nieces/nephews, unmarried partners): EUR 20,000
Czech Republic
In the Czech Republic, all gratuitous acquisitions from inheritance or an estate are exempt from tax. This applies regardless of the degree of relationship to the testator and the value of the acquisition and covers both natural persons and legal entities.
The acquisition of assets upon death therefore does not, in principle, need to be declared in a tax return. No direct tax liability arises.
Attention must, however, be paid to the reporting obligation towards the tax authorities where the value of the acquisition upon death exceeds CZK 5,000,000. In such cases, the acquisition must be reported within the deadline for filing the income tax return for the relevant tax period.
Tax considerations may nevertheless become relevant upon the subsequent sale of individual estate assets, such as real estate. In this respect, what is decisive is not the succession itself but the subsequent disposal of the assets.
Succession proceedings may differ from country to country and may be subject to varying legal requirements.
We would be pleased to provide you with individual advice and to assist you in the secure and efficient settlement of succession proceedings.