When a person dies leaving assets in several countries, heirs who are unknown or live abroad, or an estate that is difficult to oversee, the statutory order of succession alone is often not enough to wind up the estate in an orderly way. The question then arises whether an estate administrator (Nachlassverwalter) or estate curator (Nachlasspfleger) should be appointed to secure the estate, manage it and settle it vis-à-vis creditors. In purely domestic cases, this procedure is well established. If foreign assets, a last residence of the deceased abroad or heirs resident abroad are involved, additional questions arise: Which court may appoint an estate administrator? How far do the administrator’s powers extend across the border? And how does the German system differ from the executor known in Anglo-American law?
Which probate court has international jurisdiction is covered in our article on probate court jurisdiction where the deceased lived abroad. The following deals with the persons who actually administer an estate with a foreign connection: the estate curator and the estate administrator under German law, the executor of a will (Testamentsvollstrecker) and the common law executor, who must be distinguished from the latter.
Estate Curatorship, Estate Administration and Executorship: The Three German Institutions
In everyday language, a great deal is lumped together under the term “estate administrator”. Legally, there are three institutions with different requirements, purposes and legal consequences. Anyone who wants to act correctly in relation to an estate with a foreign connection must keep them apart.
Estate Curatorship under Sections 1960 and 1961 BGB
Estate curatorship (Nachlasspflegschaft) is a protective instrument. Until the inheritance has been accepted, the probate court (Nachlassgericht) must ensure that the estate is secured to the extent that there is a need to do so; this also applies if the heir is unknown or it is uncertain whether he or she has accepted the inheritance (Section 1960 (1) of the German Civil Code, Bürgerliches Gesetzbuch, BGB). The court can appoint an estate curator for this purpose (Section 1960 (2) BGB). The estate curator acts as the legal representative of the heirs who are still unknown or not yet established, not in his or her own name.
A creditor of the estate can apply for the appointment of an estate curator if it wants to assert a claim against the estate in court (Section 1961 BGB). This is the case, for example, if there is otherwise no one on whom a statement of claim could be served. The probate court defines the scope of duties (Wirkungskreis) in the appointment order. It may be limited to individual assets or cover the general securing and management of the estate.
Estate Administration under Sections 1975 et seq. BGB
Estate administration (Nachlassverwaltung) is a special form of estate curatorship that serves to satisfy the creditors of the estate and at the same time limits the heir’s liability. Once it has been ordered, the heir is in principle liable for the estate’s debts only to the extent of the estate assets (Section 1975 BGB). When it is ordered, the heir loses the power to manage and dispose of the estate (Section 1984 BGB). The estate administrator manages the estate and pays the estate’s debts out of the estate (Section 1985 BGB).
Unlike estate insolvency proceedings (Nachlassinsolvenzverfahren), estate administration does not require insolvency or over-indebtedness. It can therefore also be considered for estates that are difficult to oversee but have substantial value, in order to shield the heirs’ private assets from the outset. However, the court may refuse to make the order if there are no assets sufficient to cover the costs (Section 1982 BGB). The estate administrator can claim reasonable remuneration for his or her work (Section 1987 BGB); there are no fixed fee rates.
Executorship under Sections 2197 et seq. BGB
Executorship (Testamentsvollstreckung) is not ordered by the probate court but by the deceased himself or herself in a will or an inheritance contract (Erbvertrag) (Section 2197 BGB). The executor must carry out the testamentary dispositions of the deceased (Section 2203 BGB). The executor is bound by the deceased’s wishes and, in day-to-day business, is not subject to ongoing court supervision as an estate curator is. However, the probate court can remove the executor for good cause at the request of an interested party (Section 2227 BGB). Anyone who owns assets abroad can make provision by ordering executorship in a will made while living abroad, so that a person able to act has already been named when the succession occurs.
The Three Institutions Compared
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| Feature | Estate curatorship | Estate administration | Executorship |
|---|---|---|---|
| Legal basis | Sections 1960, 1961 BGB | Sections 1975 et seq. BGB | Sections 2197 et seq. BGB |
| Appointed by | Probate court, of its own motion or on application by a creditor | Probate court on application by the heirs or a creditor of the estate | Deceased in a will or inheritance contract |
| Purpose | Securing the estate until the heirs are established | Satisfying creditors, limiting the heirs’ liability | Implementing the deceased’s wishes |
| Ongoing court supervision | Yes | Yes | In principle no |
| Typical trigger | Unknown heirs, service problem | Estate that is difficult to oversee or possibly over-indebted | Provision in the will |
When Is an Estate Curator or Estate Administrator Appointed in Cross-Border Cases?
The following scenarios typically arise in international succession cases:
- Last habitual residence abroad, assets in Germany: The deceased last lived abroad but held an account, a securities portfolio or a property in Germany. Without a contact person with proper authority, banks and land registries cannot act.
- Unknown heirs or heirs abroad who are hard to reach: Tracing heirs across national borders often takes months, while tenancies, insurance policies or ongoing contracts call for action.
- Possibly over-indebted estate: If there are liabilities in several states and it is unclear whether the assets are sufficient, estate administration can limit the heirs’ liability to the estate.
- Digital and cross-border assets: Crypto assets on foreign exchanges, online accounts or foreign shareholdings require coordinated management. The tax consequences of such assets are covered in our article on taxation of cryptocurrencies on inheritance.
- Contradictory wills: If there are a German will and a foreign will with differing content, securing the estate through estate curatorship may become necessary until the matter is clarified.
- Creditors without a contact person: Anyone who wants to assert a claim against the estate in court while the heirs are unknown or their acceptance is uncertain can apply for the appointment of an estate curator as defendant (Section 1961 in conjunction with Section 1960 (1) BGB).
International Jurisdiction and Applicable Law
The EU Succession Regulation (Europäische Erbrechtsverordnung, EuErbVO) generally links international jurisdiction and the applicable succession law to the deceased’s last habitual residence (Art. 4 and Art. 21 EuErbVO). Under Art. 22 EuErbVO, the deceased can choose the law of his or her nationality. If the deceased’s last habitual residence was in a third country, the courts of a Member State in which estate assets are located may have subsidiary jurisdiction under Art. 10 EuErbVO. How the law governing succession shifts after a move abroad is explained in our article on international succession law when emigrating.
Art. 19 EuErbVO contains a separate rule for protective measures: provisional measures, including protective measures, that are available under the law of a Member State may be applied for to the courts of that state even if the courts of another Member State have jurisdiction as to the substance of the matter. If a German probate court orders an estate curatorship because of assets located in Germany, this protective measure is governed by German law, i.e. by Sections 1960 et seq. BGB and the German Act on Proceedings in Family Matters and in Matters of Non-contentious Jurisdiction (FamFG); local jurisdiction lies with every court in whose district the need for securing the estate arises (Section 344 (4) FamFG). This also applies if foreign succession law governs the succession itself. This separation between the law governing the protective measure and the law governing succession (Erbstatut) is often overlooked in practice.
Appointment Procedure: Application, Selection and Scope of Duties
Right to apply. The probate court orders estate curatorship of its own motion if it recognises a need for protection; heirs and other interested parties can suggest such an order, and creditors of the estate have their own right to apply under the conditions of Section 1961 BGB. Estate administration is ordered on application by the heir (Section 1981 (1) BGB). Several heirs can only apply for it jointly, and it is excluded once the estate has been divided (Section 2062 BGB). A creditor of the estate can apply for estate administration if there is reason to believe that satisfaction of the creditors from the estate is jeopardised by the conduct or the financial situation of the heir; this application is only possible within two years of acceptance of the inheritance (Section 1981 (2) BGB).
Content of the application. The application must state the details of the deceased, the known or presumed heirs, the reason for the appointment and, where applicable, a proposal for a suitable person. In cross-border cases, it is advisable to enclose evidence of the last habitual residence, the location of the assets and any foreign succession proceedings. This makes it easier for the court to examine its jurisdiction.
Selection of the person. In practice, lawyers are frequently appointed; private individuals may also be considered. The court examines suitability in each individual case and, in complex cross-border matters, pays particular attention to professional suitability.
Scope of duties. The probate court determines what the appointed person is responsible for. This can be narrowly defined, for example representation vis-à-vis a particular bank, or it can cover the securing and management of the entire estate including the foreign assets. In international matters, precise wording often decides whether the appointed person will later also be able to act vis-à-vis foreign bodies.
Powers, Duties and Limits Where Assets Are Located Abroad
The powers follow from the scope of duties and the statutory requirements:
- Inventory of the estate: Estate curators and estate administrators must establish the composition of the estate and draw up an inventory of the assets and liabilities.
- Separation of assets: In estate administration, the administered estate must be kept strictly separate from the heirs’ private assets so that the limitation of liability takes effect.
- Court approval requirements: Since the reform of the law on guardianship and legal custodianship, which entered into force on 1 January 2023, the provisions of custodianship law apply accordingly to estate curatorships, including estate administration (Section 1888 (1) BGB). Under these provisions, certain transactions, in particular dispositions of real property, require court approval (Section 1850 BGB); the probate court takes the place of the custodianship court (Section 1962 BGB). Whether a German approval is sufficient for a property abroad depends on whether the German appointment is recognised there at all.
- *Rendering of accounts: The appointed person is accountable to the probate court.
Limits abroad. A German appointment initially has direct effect only in Germany. Whether a foreign bank, a foreign land register or a foreign authority recognises the power of representation depends on the law and formal requirements of that country; an adviser in the respective state should be consulted on this. Within the EU, the European Certificate of Succession (Europäisches Nachlasszeugnis) makes recognition considerably easier. Vis-à-vis third countries, additional steps are often necessary, such as an apostille under the Hague Convention of 5 October 1961, legalisation or certified translations of the certificate of appointment.
The Anglo-American Executor: A Different Basic Model
In succession cases with a connection to the United Kingdom, Ireland, the USA or other common law jurisdictions, one encounters the executor or, where there is no valid will, the administrator. Neither can be equated with the German estate administrator.
Under German law, the estate passes as a whole directly to the heirs upon death (Section 1922 BGB). A certificate of inheritance (Erbschein) or a European Certificate of Succession merely evidences this legal consequence, which has occurred by operation of law. Under common law, by contrast, the assets as a rule first vest in a personal representative, who collects the assets, pays liabilities and taxes and only then distributes the surplus to the beneficiaries. The personal representative’s authority is generally based on a court grant, such as a grant of probate or letters of administration.
This results in some basic guidelines for succession cases with a German connection, the details of which should always be coordinated with an adviser in the state concerned:
- Assets in a common law state: German heirs often cannot dispose directly of assets located there. As a rule, separate proceedings are required locally, even if German succession law applies from a German perspective.
- Assets in Germany: A foreign grant of representation such as a grant of probate does not, as a rule, replace the certificate of inheritance or the European Certificate of Succession vis-à-vis German banks and land registries. However, it can serve as evidence in the proceedings for a certificate of inheritance.
- Confusion of roles: The common law executor is often equated with the German executor of a will (Testamentsvollstrecker). Both implement the wishes of the deceased. Under common law, however, the executor additionally performs the function of transferring the assets, which takes place automatically under German law.
- Time required: The procedure for establishing the personal representative’s authority can take several months. This time should be taken into account in the heirs’ liquidity planning.
The European Certificate of Succession for Estate Administrators
Within the EU, the European Certificate of Succession (ECS) under Art. 62 et seq. EuErbVO facilitates cross-border proof of authority. Among other things, it certifies the status of heir, of legatee having direct rights in the succession, of executor of a will or of administrator of the estate. It produces its effects in the Member States without any special recognition procedure being required (Art. 69 EuErbVO). Certified copies are in principle valid for only six months (Art. 70 (3) EuErbVO).
Under Art. 65 (1) in conjunction with Art. 63 (1) EuErbVO, administrators of the estate who need to prove their powers in another Member State are also entitled to apply. Whether a German estate curator falls within this category depends on the scope of duties. If it covers the management of the estate and not merely securing it on a one-off basis, there is much to be said for regarding the curator as an administrator of the estate within the meaning of the Regulation. If an ECS is foreseeable, the power of management should therefore be expressly mentioned in the appointment order.
The EuErbVO applies in all EU Member States except Denmark and Ireland. For assets in third countries, which since Brexit also include the United Kingdom, the national procedures of the respective state continue to apply.
Practical Challenges When Acting Abroad
- Form and certification: Foreign bodies frequently require certified translations of the certificate of appointment as well as an apostille or legalisation.
- Period for disclaiming the inheritance: Whether and until when an inheritance can be disclaimed (Ausschlagung) depends on the law governing succession (Art. 23 (2) (e) EuErbVO). If German succession law applies, the period is in principle six weeks and is extended to six months if the deceased had his or her last residence only abroad or the heir is staying abroad when the period begins (Section 1944 (1) and (3) BGB). If foreign succession law applies, its periods are decisive. As long as it remains open whether heirs will disclaim, there is often a need to secure the estate.
- Costs: In addition to court fees under the German Court and Notary Fees Act (Gerichts- und Notarkostengesetz) and the remuneration of the appointed person, cross-border cases involve costs for translations, certifications and foreign advisers. These are in principle paid out of the estate.
- Taxes: Irrespective of the administration, the question arises of inheritance tax in Germany and in the state where the assets are located. An overview is given in our article on inheritance tax and double taxation treaties.
Example
Example: The deceased, Hanna, last lived in Portugal and leaves a securities portfolio in Munich and a flat in Lisbon. There is no will. Her only niece, Lea, who is assumed here to be the sole heir (whether she actually would be under Portuguese law must be examined in the individual case), lives in Canada and only learned of the death late. Because the custodian bank will not act without a contact person with proper authority and it is unclear whether Lea will accept the inheritance, the bank suggests to the Munich probate court that the estate be secured. Because of Hanna’s last habitual residence, the Portuguese courts in principle have jurisdiction over the succession as a whole; the German probate court can nevertheless order a protective measure for the Munich portfolio under Art. 19 EuErbVO. It appoints an estate curator with the scope of duties “securing and managing the estate located in Germany”. Whether and until when Lea can disclaim the inheritance depends on Portuguese succession law, because it governs the succession as a whole (Art. 21, Art. 23 (2) (e) EuErbVO); the German period under Section 1944 BGB does not apply here. If Lea accepts the inheritance, she can have a European Certificate of Succession issued by the Portuguese authorities and use it to prove her status as heir to the Munich bank. Which evidence is required for the flat in Lisbon depends on Portuguese law and must be clarified with an adviser in Portugal.
Checklist: Estate Administrator in Cross-Border Cases
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| Step | Content | Note for cross-border cases |
|---|---|---|
| 1. Record the facts | Last habitual residence, nationality, location of the assets | Basis for jurisdiction and governing law under the EuErbVO |
| 2. Examine the need | Unknown heirs, estate difficult to oversee, need for action | Estate curatorship or estate administration |
| 3. Identify the court | Art. 4, 10, 19 EuErbVO | Protective measures possible even without jurisdiction as to the substance |
| 4. File the application | Deceased, heirs, reason for appointment, proposed person | Estate administration: co-heirs only jointly |
| 5. Word the scope of duties | Have the extent of the powers defined | Mention the power of management with a view to an ECS |
| 6. Clarify recognition abroad | Apostille, legalisation, translation | Within the EU: ECS |
| 7. Check common law assets | Plan for separate proceedings locally | Consult a foreign adviser |
| 8. Observe deadlines | Period for disclaiming under the law governing succession, tax notification obligations | Under German succession law six months under Section 1944 (3) BGB |
Conclusion
Anyone who wants to have an estate administrator or estate curator appointed for an estate with foreign assets must first distinguish between estate curatorship, estate administration and executorship and have the scope of duties worded precisely. A German appointment initially takes effect only in Germany. To act abroad, the European Certificate of Succession is the key instrument within the EU, while apostille, legalisation and translations are required vis-à-vis third countries. The Anglo-American model of the personal representative, under which the estate does not pass automatically to the heirs, deserves particular attention. Recognising these differences early can significantly reduce delays in winding up an international estate.
FAQ
Who can apply for estate administration?
The heir; where there are several heirs, only all of them jointly and only before the estate has been divided (Section 1981 (1), Section 2062 BGB). A creditor of the estate can apply for it if satisfaction of the creditors is jeopardised by the conduct or the financial situation of the heir, and only within two years of acceptance of the inheritance (Section 1981 (2) BGB).
What is the difference between an estate curator and an estate administrator?
The estate curator secures the estate as long as the heirs are unknown or acceptance is uncertain. The estate administrator serves to satisfy the creditors and limits the heirs’ liability to the estate.
Does a German appointment also apply abroad?
Directly, it initially applies only in Germany. Within the EU, the European Certificate of Succession helps. In third countries, local law decides on recognition; a local adviser should be consulted for this.
Are separate proceedings needed for assets in England or the USA?
Often, yes. Under common law, the estate first passes to a personal representative, whose authority must be established locally. As a rule, this also applies if German succession law applies from a German perspective.
How long do heirs in cross-border cases have to disclaim the inheritance?
That depends on the applicable succession law. If German succession law applies, the period is six months instead of six weeks if the deceased had his or her last residence only abroad or the heir is staying abroad when the period begins (Section 1944 (3) BGB). If foreign succession law applies, its periods are decisive.
Attorney Dr. Johannes Fiala and the Munich-based firm, which focuses on international succession law, asset protection and tax law, advise clients on estate curatorship, estate administration and executorship in cross-border succession cases, from the application to the probate court to coordination with advisers abroad. Dr. Fiala has published extensively on questions of succession and property law. Please get in touch with the firm without obligation to discuss your case in an initial consultation.
