CHAPTER VI The Law of Succession
Manual of German Law › Part I General Introduction and Civil Law (2008)
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CHAPTER VI The Law of Succession
SECTION I - TERMINOLOGY AND GENERAL PRINCIPLES
570. The German law of succession, both testate and intestate, is treated at great length in the fifth book of the Civil Code, which at one time was considered to be technically the best part of the Code. This view is largely abandoned today. Many rules contained in this part are obsolete as they deal with contingencies which rarely, if ever, arise and introduce rules of interpretation for clauses in wills, which are today no longer usual. The general decline of the wealth of the German population has led to a decrease in the importance of this part of the law as compared to the time when it was introduced. For this reason the following summary is more strictly confined to the principles of the law than the preceding parts of this work. On the other hand-as in other countries-succession duty plays an important part in Germany. The law relating to this duty has been amended by CCG Law No. 17. 571. The German law on intestate succession contains a number of rules inherited from Germanic law, but very much fewer than does English law. The bulk of this part of German law is due to Roman influence. For this reason many of the main principles of German law deviate most strongly from those rules of law to which English lawyers are accustomed. 572. Perhaps the most important principle of German law is the principle of ' Universalsukzession '. This principle, which is unknown to English law, means that on the death of a person, his or her entire property passes immediately and automatically to his or her heirs. The death of a person is in this connection referred to as the ' Erbfall '. No distinction is made between movable and immovable property: on the death of the deceased person both types of property are automatically and without any interval in time or any further outward action of any kind vested in the heirs, whoever they may be, no matter whether they are known or whether it is necessary to take steps to ascertain their identity. Such persons are the owners of the deceased persons property, even though they do not know of the Erbfall or of the property and its whereabouts. The consequence is that by the death of a person the contents of the land register, in which the deceased person still appears as the owner of the land registered in his or her name, become inaccurate. They require an adjustment to the effect that in the place of the registered owner his heirs are now owners. The heirs obtain the adjustment upon production of proof that they have succeeded to the estate of the deceased person. This is as a rule done by obtaining from the Amtsgericht a certificate, called the ' Erbschein ' (certificate of inheritance) which to a certain extent fulfils the same functions in German law as letters of administration in English law, though its legal character is different. Under German law possession, too, passes-by a legal fiction-over to the heirs at the time of the Erbfall (see section 857 BGB). This applies even though the latter do not know of either the death or the fact that they are succeeding to the estate. 573. It follows that there is in German law no interval between the death of the deceased and the succession to the title by his successors. The space which in Roman law had to be filled by the well-known conception of the hereditas jacens, is therefore non-existent in German law and the many theories concerning the nature of such an inheritance, developed in Roman law and in some of the contemporary systems based upon Roman law, have no place in modern German law. 574. All rights and all liabilities pass over at the same time to the heirs. The heir is a successor to both, the assets and the debts of the deceased person. This, too, is included in the conception of the ' Universalsukzession '. It follows that there is no room for the institution of trustees, executors and administrators of an estate in the sense of English law. German law recognises, however, that a person, other than the heir, may be entitled or bound to administer an estate. Such a person is called a ' Testamentsvollstrecker '. His legal position differs from that of an executor or administrator 63844 O under English law, in that neither rights nor liabilities pass over to him. The latter remain vested in the heirs. The ' Testamentsvollstrecker ' is merely a person entitled to act for and on behalf of the heirs, to dispose of the estate within the limits set by the law and the will, by which he has been.appointed, and to exercise those other powers granted to him by the will. He has powers and duties, but not rights or liabilities. In certain cases administrators (Nachlas...See the full content of this document
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