How does property pass at death

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General information on the US probate process

If, according to German law, the estate passes directly to the heir with the inheritance (so-called Universal succession), this is alien to Anglo-American law (common law). In the United States of America, the estate is first transferred to the “personal representative”, the personal legal successor of the testator, whom the testator either appoints in a will (“executor”) or, if one has not been determined, is no longer applicable prevented from exercising his office, the competent probate court appoints an "administrator". The legal status of "executor" and "administrator" is in no way comparable with that of the executor or administrator in the German legal sense. Through the appointment or appointment, the personal legal successor of the testator acquires only fiduciary, but nonetheless actual property rights to the entire estate, which only end when the dispute over the estate is concluded. Up to this point in time, the heirs have no guaranteed rights to the estate, but only an entitlement.

While in German law the execution of wills and administration of the estate are exceptional and the administration of the estate, including the settlement of the obligations of the estate and the legacies, is the responsibility of the heir (s), in the USA, the administration of the estate is the responsibility of the heir by a “personal representative” indispensable in any case. This also results from the fact that, under Anglo-American law, there is neither a distinction between heirs and other beneficiaries in the sense of German law, nor is heir liability.

The appointed or appointed “personal representative” has in his position as personal legal successor of the testator to deal with the estate and to deal with the estate settlement. He cannot therefore represent the interests of the heirs or legatees at the same time, but is exclusively obliged to the estate and the probate court. It is therefore advisable in most cases that German heirs and legatees are represented in inheritance proceedings by a lawyer who is familiar with the American procedural rules and who is licensed at the place of the court.

The "personal representative“Has to submit the inheritance certificate and a detailed final statement to the American probate court at the end of his work. A period of one year is usually provided for this. Only the final account approved by the probate court in an examination meeting after a decision on any objections raised and the court confirmation of the proof of inheritance form the basis for the distribution of the net estate to the heirs and legatees based on legal or testamentary succession.

The authorized representative of the heirs / legatees has the To register inheritance claims and, if necessary, enforce all court dates, monitor the administration of the estate and check that all assets are recorded and that no assets are being wasted. After completion of the proceedings, the authorized representative must grant discharge to the estate administration and, together with the latter, ensure that the portions of the inheritance are distributed.

Participation of the German diplomatic mission

The participation of the German diplomatic missions abroad in the processing of an estate is usually limited to identifying the inheritance participants living in Germany, to whom they can, if requested, suggest suitable lawyers who enjoy the trust of the respective diplomatic mission abroad.

Involvement of lawyers

Investigations and other preliminary determinations can generally be carried out by a lawyer on his own initiative or on the basis of an assignment given to him. To represent the parties involved vis-à-vis the executor or administrator of the will and the probate court, he needs a formal power of attorney.

The wording of the power of attorney and its form - notarial certification as well as its confirmation (apostille according to the Hague Convention) - are based on the applicable regulations, which may differ from one another in the individual states of the Union. If there are several parties involved, it is advisable that they choose the same lawyer, unless there are conflicting interests between them that suggest separate representation.

Legal fees are in the United States in general high. In the case of representation in estate matters, a success fee is often agreed in advance, which represents a certain percentage of the net income. The amount of this percentage depends on the difficulty of the case and the extent of the legal work that is determined by it. 10 to 15% are justified as an average minimum amount, while in difficult cases up to 30%, sometimes even higher amounts, must be expected. Advance payments may have to be made to the attorney's cash expenses.

Notes for those involved in Germany

Timely delivery the required proof of inheritance and other documents can accelerate the process. The instructions of the lawyer regarding the certification of such documents and the translation must be carefully observed. Mostly these will be civil documents or excerpts from church registers, in addition to which correspondence between the testator and his relatives, photographs and other things may also come into consideration.

Are they in testament named heirs or legatees died in the course of inheritance proceedings, the right of inheritance of the persons taking their place can usually only be exercised by presenting a German inheritance certificate be detected. On the basis of this certificate of inheritance, auxiliary proceedings will then have to be carried out in the United States for these portions of the inheritance. In the event of a war missing, submission of the declaration of death will be necessary.

Direct inquiries from those involved or domestic German authorities to the American probate court are usually pointless, as are requests to the administrator of the estate for information about the probable duration and the probable result of the proceedings.

It is important to grant the power of attorney as quickly as possible. If the amounts incurred for unknown or known but not represented parties by the executor or administrator of the estate have been paid to a depository agency as intended after the procedure has been concluded, they will usually not be returned without a lengthy and costly procedure.

Inheritance agencies who are not known to be reliable are warned against authorizing them. If the involvement of a genealogical institute should be necessary in individual cases, the associated and not inconsiderable costs may be charged to the heirs in addition to the legal fees. This should be clarified beforehand.

The laws of some individual states contain special features which attorneys will communicate to their principals as required.

Inheritance tax

With regard to the taxes and duties to be paid in the Federal Republic of Germany and the USA, reference is made to the provisions of the German-American Agreement on the Avoidance of Double Taxation on Inheritance and Gift Tax of September 22, 1982 (in particular Section IV Article 11) with a supplementary agreement of December 1998 to Spouse's allowance (double the amount that applies to everyone). In the United States, this agreement applies only to federal estate and gift tax, but not to state taxes. Appropriate information from an experienced tax specialist is indicated and recommended.

Double taxation treaty


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