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Execution of a Last Will and Testament

If a testator disposes an execution of his last will and testament, special inheritance law issues arise for the persons concerned.

Which purpose has the testamentary disposition of an execution of a will?

Above all, a disposition mortis causa regarding the execution of a will aims at enforcing one’s final wishes by a person with special powers – namely by an executor of the last will.

Further possible reasons are the protection of the heir upon death or of the assets left to the heir, for example because he or she is still minor or not old enough to administer such an estate. The same applies for legatees with the above special situations.

Which rights and duties have executors under German inheritance law?

The rights of an executor depend on the individual testamentary dispositions and on the range of tasks assigned to the executor in the last will. The executor`s duties are either defined in the last will and testament or regulated by German inheritance law.

Without any specific dispositions, the range of administrative and dispositive rights of an executor is comprehensive. In general, he takes possession of and administers the estate. If the executorship is limited to a part of the estate, the executor’s rights only apply to this part of the estate.

Furthermore, the execution of a last will and testament can also be restricted to the inheritance of one of the heirs or even of one legatee. Often, such a disposition is made for minors or special acquirers by reason of death, in many cases combined with other testamentary dispositions, such as a preliminary and reversionary inheritance.

There are different kinds of executorship for a last will and testament, among others:

  • the execution in order to settle an estate,
  • the administrative execution, or
  • the permanent execution.

In each specific case, the disposed kind of execution has an impact on the powers of the executor. There also may be several executors. This depends on whom the testator designated to become executor.

The executor’s fundamentally comprehensive range of administrative and dispositive rights does not mean, however, that he can do whatever he likes. He is obliged to implement the will of the testator and, in addition, the executor has a number of legal and also tax duties. To these belong, among others, to set up an estate inventory and to satisfy obligations pursuant to German inheritance tax law, to name just two examples.

What can be done in the case of dispute about rights and duties?

Often, a dispute arises between the heir on the one side and the executor on the other when it comes to execute a last will and testament.

The conflict of interests is latent and it is not unusual that it leads to disputes, either because the heirs do not agree with an executors performance of duties, or because he has to enforce the testator’s last wishes against the will of all or individual heirs or other beneficiaries.

Our law firm, specialized in German inheritance law, consults individual heirs to protect their rights and, if applicable, to enforce these rights against an executor of a last will, firstly, in a way which is comprehensive for foreigners. Furthermore, specialist inheritance lawyer Dr. Hosser advises executors pursuant to German inheritance law, on how to perform their legal duties and how to defend themselves against unjustified assertions of individual heirs. We also provide assistance for inheritance tax issues.

Where do I get a certificate of executorship?

Only the competent German probate court can issue a German certificate of Executorship for the estate – or parts thereof – of a specific testator. As specialist lawyer for inheritance law, Dr. Hosser can support you in the preparation of an application and in gathering the necessary information and deeds for the court. If a dispute regarding the person nominated as executor seems probable, we usually recommend to get consultation in inheritance law before submitting such an application. The same applies for executors from abroad, at least if German inheritance law is applicable, because in general they need consultation about German inheritance law for foreigners.

Which peculiarities exist for executors pursuant to foreign law?

As a German heir or executor under the German inheritance law, one still finds oneself – at least to some degree – on familiar legal ground, despite the relatively difficult regulations of the German inheritance law regarding the execution of a last will and testament.

If, however, foreign law applies in an international case of succession, this law basically also applies for the execution of the last will and testament. In this case, the execution must follow the rules of the foreign law which is relevant for the succession.

One example is the administration of an estate by a so-called personal representative, who was nominated by an American court in one of the Federal States of the USA. Comparable kinds of estate administration exist in parts of Canada or pursuant to the law of Great Britain, respectively the law of England and Wales.

Despite these peculiarities of foreign executions of last wills, on the basis of our long-standing experience and expertise, we can professionally support you by providing answers to your questions on legal issues in the framework of an international inheritance case. Please do not hesitate to inquire how we can accompany you in the execution of an estate abroad, for which an execution of the last will and testament pursuant to foreign law was ordered.

We also support foreign executors or others with legal powers based on foreign law, about how to take possession of, administer or dispose of an estate in Germany.

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Dr. Marcus Hosser TEP (Trust and Estate Practitioner) – Fachanwalt für Erbrecht.
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