Anyone who wishes not only to appoint heirs in a will but also to impose obligations on them, such as tending a grave, preserving a holiday home or caring for an animal, uses the testamentary burden (Auflage) under Section 1940 BGB (German Civil Code) for this purpose. Where there are assets abroad, an additional question arises: do testamentary burdens relating to assets abroad actually work as intended? The answer depends on which succession law applies to the estate, whether the foreign state recognises testamentary burdens and how a burden can be enforced in practice against a reluctant heir. This article explains the German testamentary burden, its interfaces with the EU Succession Regulation, the consequences for the compulsory share and for tax, and typical mistakes (legal position: September 2026). For the details of the foreign legal position, advice on foreign law should be obtained.
What Is a Testamentary Burden, and How Does It Differ from a Legacy and a Condition?
Under Section 1940 BGB, the testator may, by will, oblige the heir or a legatee to perform an act without giving anyone else a right to that performance. This is precisely the difference from the legacy (Vermächtnis, Section 1939 BGB): with a legacy, the beneficiary acquires a claim of their own against the person charged with it; with a testamentary burden, there is only an obligation without a corresponding creditor. Certain provisions on testamentary gifts, for example on the determination of the beneficiary by third parties and on alternative obligations, apply to the testamentary burden accordingly (Section 2192 BGB).
The testamentary burden differs from a condition in its legal consequence. If a condition is not fulfilled, the gift lapses. If a testamentary burden is not fulfilled, the person burdened initially remains heir but is obliged to perform, and this obligation can be enforced. Where assets are held abroad, this is a considerable practical difference, because a condition (for example “only someone who does not sell the flat in Spain shall inherit it”) may be interpreted and applied quite differently abroad than in Germany.
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| Planning instrument | Effect | Claim of a third party | Consequence of non-performance |
|---|---|---|---|
| Testamentary burden (Section 1940 BGB) | Obligation of the heir or legatee | No, only a right of others to demand performance (Section 2194 BGB) | Performance can be demanded; the gift generally remains in place |
| Legacy (Section 1939 BGB) | Gift to a beneficiary | Yes, a claim against the person charged | Performance can be enforced in court |
| Condition | Gift depends on the event | Not required | Gift lapses or takes effect |
| Execution of the will | Administration and implementation by a person of trust | Not required | The executor implements the dispositions and can pursue performance |
Typical Testamentary Burdens Relating to Assets Abroad
Where there is an international connection, the following dispositions are particularly common in advisory practice:
- The holiday home abroad may not be sold, or may only be sold with the consent of certain persons.
- Siblings or the surviving partner may use the property at certain times.
- Running costs (property tax, service charges, maintenance) are to be borne by the estate or by the heirs.
- An amount is to be paid to an organisation or person in Germany or abroad.
- Tending a grave, caring for an animal or maintaining a family archive.
Whether such dispositions achieve the desired effect is decided at three points: the applicable succession law, the form of the will and enforcement in the state where the assets are located.
Which Law Governs the Testamentary Burden?
Within the EU, the Succession Regulation (Regulation (EU) No 650/2012, EuErbVO) determines the applicable law. As a rule, the decisive law is that of the state in which the deceased had their habitual residence at the time of death (Article 21 (1) EuErbVO). A German national who moves the centre of their life abroad therefore runs the risk that their will is assessed under foreign law. How German succession law can still apply at all in a case with a foreign element is explained in our article on German inheritance law with a residence abroad.
Under Article 23 EuErbVO, this law applicable to the succession (Erbstatut) governs the succession as a whole, including the determination of the beneficiaries, the rights of the heirs, liability for the debts of the estate and the compulsory shares. Under Article 24 (1) EuErbVO, the admissibility and substantive validity of a disposition of property upon death, other than an agreement as to succession, are governed by the law that would have applied to the succession if the testator had died on the day the disposition was made. For the testamentary burden, this means: whether and how it takes effect depends on the law applicable to the succession. If the relevant legal system does not recognise the testamentary burden in this form, it may, in an extreme case, be treated only as a non-binding wish or be given a different legal classification. This can only be assessed with advice on foreign law.
Choice of Law as the Central Steering Instrument
Under Article 22 (1) EuErbVO, a person may choose, for their entire succession, the law of the state whose nationality they possess at the time of making the choice or at the time of death. German nationals can thus choose German succession law even if they live abroad. Under Article 22 (2) EuErbVO, the choice of law must be made expressly in a disposition of property upon death or be demonstrated by the terms of such a disposition. Without it, a will containing carefully drafted testamentary burdens modelled on German law may fall within the scope of a legal system that treats these instruments differently.
Example of a wording (for illustration only, not a template): “I am a German national. For the entire succession upon my death, I choose German law, irrespective of where I have my habitual residence at the time of my death.” Such a clause belongs in the will itself and should be coordinated with the other dispositions. This is covered in more depth in our article on wills and succession law with a residence abroad.
Scission of the Estate and Third Countries
A choice of law does not solve every problem. If assets are located in a state outside the EU, the estate may be split (Nachlassspaltung): under Article 34 EuErbVO, renvoi must be taken into account where the law of a third country applies. In addition, special rules of the state where the assets are located may apply to certain assets under Article 30 EuErbVO, for example for economic, family or social reasons, and foreign courts and registers sometimes do not follow the connecting factors of the Regulation. Expressly excluded from the scope of the Regulation are also the nature of rights in rem and the recording of rights in a register (Article 1 (2) (k) and (l) EuErbVO). If a right in rem is not known in the state where the assets are located, it must be adapted under Article 31 EuErbVO to the closest equivalent right.
In concrete terms, this means for testamentary burdens: a burden relating to a foreign property (“do not sell”, “grant a right of use”) may fail because of the land register or the property law of that country, even if the will is otherwise valid. A right of use for a third party may have to be created in the state where the property is located in a form known there. Foreign advice is also required for this.
Form: Valid German Will, Valid Testamentary Burden Abroad?
German courts assess the formal validity of a will under the Hague Convention on the Conflicts of Laws Relating to the Form of Testamentary Dispositions of 1961, which, under Article 75 (1) subparagraph 2 EuErbVO, takes precedence over Article 27 EuErbVO; for agreements as to succession, Article 27 EuErbVO applies. Both sets of rules consider it sufficient that the formal requirements of, among others, the place where the will was made, the nationality, the domicile or the habitual residence of the testator have been met, and in the case of immovable property also the law of the place where it is located. This protects against many formal errors, but does not remove the substantive limits of the law applicable to the succession. A joint will or an agreement as to succession (Erbvertrag), as known in German law, is not permitted in some legal systems. Testamentary burdens contained in a joint will of spouses may therefore come to nothing if foreign law applies. Particularly for married couples with assets abroad, it is advisable to examine whether separate wills are more suitable.
Safekeeping is also part of securing the will in practice: a will can be deposited in special official safekeeping at the local court (Amtsgericht, Section 2248 BGB), and the safekeeping details are registered in the Central Register of Wills (Zentrales Testamentsregister) at the Federal Chamber of Notaries (Bundesnotarkammer). This increases the likelihood that the will is found after death and passed on to the probate court. A will that nobody abroad knows about is of no use to the testamentary burden.
Enforcing the Testamentary Burden: Who Can Demand Performance?
Because the person who benefits from the testamentary burden has no claim of their own, the law provides for persons entitled to demand performance. Under Section 2194 BGB, performance can be demanded by the heir, the co-heir and the person who would directly benefit if the person initially burdened were to drop out; if performance is in the public interest, the competent authority can also demand it. If performance becomes impossible due to a circumstance for which the person burdened is responsible, the person who would directly benefit if the person burdened dropped out can demand surrender of the gift under the law of unjust enrichment, to the extent that it would have had to be used for performance (Section 2196 BGB). If the testamentary burden is invalid, this only renders the gift invalid if it is to be assumed that the testator would not have made the gift without the burden (Section 2195 BGB).
Where there is an international connection, additional hurdles arise: the person burdened may live abroad, the assets may be located in a third state, and a German judgment is not readily enforceable there. As a precaution, the testator should therefore provide for an independent person to supervise performance. As a rule, an executor (Testamentsvollstrecker) who carries out the testamentary dispositions (Section 2203 BGB) is advisable; for the burdens imposed on a legatee, Section 2223 BGB expressly provides for this. Within the EU, the executor can prove their status with the European Certificate of Succession (Articles 62 et seq. EuErbVO). Whether, and to what extent, a German executor is recognised in a third country is a question of the law of that country. On the question of which probate court has jurisdiction where the deceased was resident abroad, see probate court jurisdiction with a foreign residence.
Testamentary Burdens and the Compulsory Share Where Assets Are Held Abroad
If an heir entitled to a compulsory share (Pflichtteil) is burdened with a testamentary burden, they can, under Section 2306 (1) BGB, disclaim the inheritance and claim the compulsory share instead. In this case, the period for disclaiming only begins when they become aware of the burden. The period is generally six weeks, but six months if the deceased had their last domicile only abroad or if the heir is abroad when the period begins (Section 1944 BGB). Anyone who burdens heirs with testamentary burdens must therefore take into account that a person entitled to a compulsory share can escape the burden by disclaiming.
On the compulsory share in an international context: some legal systems have no compulsory share law or a different system of forced heirship rights. Whether German compulsory share claims can be enforced against assets abroad is disputed and depends on the case. The details are set out in our article on the compulsory portion and foreign assets. A testamentary burden does not serve to circumvent compulsory share rights. It should be measured so that the heir is not overburdened financially.
Particular care is required in families with disabled relatives: testamentary burdens and legacies play a role there in protecting against recourse by the social assistance authorities. On this, see the disabled person’s will with a residence abroad.
Tax Consequences of a Testamentary Burden Where Assets Are Held Abroad
For German inheritance tax, the following applies: if the acquirer or the deceased is a resident, the entire acquisition is subject to unlimited tax liability. Residents also include German nationals who have not been continuously abroad for more than five years without having a residence in Germany (Section 2 (1) no. 1 ErbStG, German Inheritance and Gift Tax Act). Foreign assets are then taxable in Germany, even if they are also taxed in the state where they are located. Double taxation is mitigated by treaties or by a credit under Section 21 ErbStG; the credit is only granted on application and requires evidence of the foreign assets and of the foreign tax assessed and paid. According to the overview of the Federal Ministry of Finance (BMF) (as of 1 January 2026), inheritance tax double taxation treaties exist with only a few states (Denmark, France, Greece, Switzerland, USA); the former treaty with Sweden no longer applies to inheritances since 2024. The basics can be found in our article on German inheritance tax and double taxation treaties.
The testamentary burden has tax effects of its own:
- Acquisition through performance. Under Section 3 (2) no. 2 ErbStG, an acquisition upon death also includes what someone acquires as a result of the performance of a testamentary burden imposed by the deceased, unless there is a single-purpose gift (Zweckzuwendung). Anyone who benefits from a testamentary burden can therefore become liable to tax themselves.
- Deduction by the person burdened. Liabilities from legacies, testamentary burdens and compulsory shares that have been claimed are deductible as debts of the estate under Section 10 (5) no. 2 ErbStG. Under Section 10 (9) ErbStG, this does not apply to testamentary burdens that benefit the person burdened themselves.
- International connection. Whether a tax is incurred abroad on the performance of the testamentary burden, and how it relates to German tax, is determined by the law of that country.
- Notification obligation. An acquisition subject to inheritance tax must generally be notified to the tax office in writing within three months of becoming aware of it (Section 30 ErbStG), even if the assets are located abroad; the exception for dispositions upon death opened by a court (Section 30 (3) ErbStG) does not apply if the acquisition includes foreign assets.
Alternatives If the Testamentary Burden Does Not Hold
If a disposition is intended to apply permanently, the testamentary burden is often not the strongest instrument. Options include:
- Legacy combined with execution of the will, if a third party is to have a claim of their own.
- Rights of use in the property transferred during the owner’s lifetime, if these are known and registrable in the state where the property is located.
- Foundation or company solutions, if assets are to be tied up in the long term; on this, see German family foundations and asset protection.
- A supplementary foreign will for the assets abroad, coordinated with the main will.
A supplementary will carries a risk: a later will can revoke an earlier one to the extent that it contradicts it (Section 2258 BGB). Anyone who makes several wills should therefore expressly provide that the earlier one is to remain unaffected insofar as it concerns a different part of the assets.
Common Mistakes in Practice
- Testamentary burden without a choice of law. The burden is drafted according to the German legal understanding but, because of residence abroad, is subject to a different legal system.
- Condition and testamentary burden confused. “If the heir sells the flat, he shall lose it” is not a testamentary burden but a (resolutive) condition with different legal consequences.
- No substitute person burdened, no supervising person. If the person burdened drops out or is not reliable, there is a risk that the testamentary burden remains unfulfilled.
- Unclear wording. What, by when, to what extent and at whose expense? Without specifics, performance becomes contentious.
- Testamentary burden imposed on a person entitled to a compulsory share without due consideration. They can disclaim and claim the compulsory share (Section 2306 (1) BGB).
- Taxes not considered. The costs of the testamentary burden are only partly deductible; taxes in the state where the assets are located are added.
- Foreign register and property law ignored. A prohibition on sale or a right of use only takes effect if the state where the assets are located recognises it.
Checklist Before Making the Will
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| Step | Question | Done when |
|---|---|---|
| 1 | Where does the testator have their habitual residence, and where are the assets located? | An overview of assets and an analysis of residence are available |
| 2 | Which succession law applies, and is a choice of law advisable? | Decision under Articles 21, 22 EuErbVO documented |
| 3 | Does the law of the state where the assets are located recognise the planned disposition? | A foreign adviser has confirmed |
| 4 | Is the testamentary burden clear, determinable and capable of performance? | Content, deadline, costs and beneficiaries specified |
| 5 | Who supervises performance? | Executor or persons entitled to demand performance named |
| 6 | Are persons entitled to a compulsory share affected? | Consequences under Section 2306 BGB examined |
| 7 | Which taxes arise in Germany and abroad? | Tax review under the ErbStG and, where applicable, treaties carried out |
| 8 | Can the will be found, and is it held in safekeeping? | Official safekeeping and registration completed |
Conclusion
The testamentary burden is a flexible planning instrument, but where assets are held abroad it does not work by itself. Legally, it is only as strong as the law applicable to the succession that supports it, and only as effective as its enforcement in the state where the assets are located. Anyone with assets abroad should therefore, first, clarify the applicable law and, where appropriate, make a choice of law; second, word the testamentary burden clearly and secure it with a supervising person; third, take the consequences for the compulsory share and for tax into account; and fourth, obtain foreign advice wherever foreign law is involved.
FAQ
What is a testamentary burden in a will?
A testamentary burden obliges heirs or legatees to perform an act without anyone else acquiring a claim to it (Section 1940 BGB). Performance can be demanded by the heir, the co-heirs, the person who would directly benefit if the person burdened dropped out and, where there is a public interest, the competent authority (Section 2194 BGB).
Does a German testamentary burden automatically also apply to assets abroad?
No. Whether and how a testamentary burden takes effect is determined by the succession law applicable to the succession (Articles 23, 24 EuErbVO). For immovable property and registers abroad, the property and registration law of that country is also relevant. Clarification with a foreign adviser is required.
Does a choice of law help with testamentary burdens?
Often, yes. A choice of German law (Article 22 EuErbVO) generally means that the testamentary burden is assessed under German succession law. It does not replace the examination of whether the state where the assets are located gives effect to the disposition in the individual case, particularly in the case of third countries.
Can an heir entitled to a compulsory share avoid the testamentary burden?
They can disclaim the inheritance and claim the compulsory share (Section 2306 (1) BGB). The period for disclaiming only begins once they become aware of the burden; it is six weeks, and six months in certain cases with a foreign connection (Section 1944 BGB).
Are the costs of a testamentary burden deductible for tax purposes?
Liabilities from testamentary burdens are, under Section 10 (5) no. 2 ErbStG, generally deductible debts of the estate. Testamentary burdens that benefit the person burdened themselves are not deductible under Section 10 (9) ErbStG. Whether and how taxes arise abroad is governed by the law of that country.
Attorney Dr. Johannes Fiala has published extensively on international succession law and asset protection and supports clients in carefully coordinating their will with testamentary burdens, a choice of law and assets abroad, from the selection of the dispositions and securing their performance through to coordination with foreign advisers. Please get in touch with the firm without obligation to discuss your individual situation in an initial consultation.
