Inheriting an Estate in Germany From Australia

Inheriting in Germany from Australia usually means either applying for a German certificate of inheritance, an Erbschein, or renouncing the inheritance. The Erbschein application includes a sworn declaration that the German missions record at the Consulate General in Sydney, not an Australian notary. A renunciation must reach the German probate court within six months for heirs living abroad.

Key takeaways

• For deaths from 17 August 2015, the EU Succession Regulation generally applies the law of the country of the deceased's last habitual residence, so a German who lived in Australia may be inherited under Australian law.
• An Erbschein proves who the heirs are, for German land registries, banks and savings banks. It is issued by the probate court in Germany.
• The application contains a sworn declaration that must be recorded by the probate court, a notary in Germany or an authorised German consular officer. In Australia, it is handled by the Consulate General in Sydney.
• An heir living outside Germany can renounce within six months of learning of the inheritance, by a declaration to the probate court with a publicly certified signature.
• If a parent renounces, the inheritance usually passes to the children, who must renounce too, with both parents signing for a minor.

Which law applies?

The German missions in Australia begin their inheritance page with the question of applicable law. Since 17 August 2015, the EU Succession Regulation governs which national law applies to an international inheritance for courts in EU states other than Ireland and Denmark. For deaths from that date, the whole succession is generally governed by the law of the country where the deceased had their last habitual residence at death. Before then, German law applied the law of the deceased's nationality.

The practical effect is significant: a German citizen who had lived in Australia for decades may be inherited under Australian law, even for property in Germany, unless they made a choice of law for German law in a will. The missions explain that habitual residence is where the centre of a person's family and working life is, and recommend specialist legal advice where it is unclear. This affects who inherits and in what shares, so get advice early.

What is an Erbschein, and who issues it?

The missions explain that an Erbschein, a certificate of inheritance, legitimises the heir in legal dealings: it is presumed correct and complete, and authorities such as the land registry, and also banks and savings banks, need it as reliable proof of the right to inherit. It is issued on application by the competent probate court (Nachlassgericht) in Germany. An executor can apply for an equivalent certificate for executors, and the missions' questionnaire also covers the European Certificate of Succession.

Why can't an Australian notary take the application?

This is the point where many families expect an Australian notary, and the missions say otherwise. The Erbschein application includes a sworn declaration (eidesstattliche Versicherung), and so it must be recorded by the probate court, a notary in Germany, or an authorised German consular officer. In Australia, the missions say applications are processed only at the Consulate General in Sydney; the recording itself can take place there or, by arrangement, at the Embassy in Canberra or an honorary consul's office.

So the route is through the German mission, not a local notary. An apostille does not come into it for this application, because the consular officer's record is a German act.

How do you apply from Australia?

1. Complete the questionnaire for an Erbschein application, signed, paying particular attention to sections 3 and 5 to 8, which the missions highlight.
2. Gather the documents that prove the family relationships and the right to inherit, listed below.
3. Post plain copies of the questionnaire and all documents to the Consulate General in Sydney.
4. The consulate prepares a draft of the application and contacts you to book an appointment, which you must attend in person.
5. Bring your passport and the originals of everything you sent in copy.
6. Send the recorded application, with certified copies of the documents, to the competent probate court in Germany, yourself or through a representative.

The probate court charges its own fee for issuing the Erbschein, separate from the consulate's. The missions add that they cannot give individual legal advice or represent you in the probate case; for that, you need a lawyer.

Which documents are needed?

The missions list the documents usually needed with the questionnaire:

Whose documents	What the missions list
The deceased	Death, marriage and divorce certificates; last passport, or passports for a dual national; citizenship documents; any will
A will	If there is one, information on any probate in the Supreme Court; without probate, the German court will usually want the original will
The spouse	Birth certificate and, where relevant, death certificate, for each marriage
Descendants	Birth, marriage and, where relevant, death certificates, including adopted children
People named in the will	Identity document and, where relevant, death certificate
Property in Germany	An extract from the German land register and proof of market value
Money and valuables	Bank, account number and latest statement
The applicant	Passport

Parents and siblings of the deceased provide documents only where there are no living children or grandchildren. The missions ask for the proof to be as complete as possible to avoid questions.

How do you renounce a German inheritance?

An inheritance can carry debts, and German law lets an heir renounce it (Erbausschlagung). The missions explain the deadline: six weeks, or six months for an heir living outside Germany, from learning of the inheritance, by a declaration to the German probate court. The declaration must be at least in publicly certified form. If you cannot make it at the probate court directly, your signature can be certified at a German mission or by a German honorary consul in Australia. Everyone whose signature is certified must attend in person with their passport, and the missions publish a form you can use.

The missions add a warning that catches families: if a parent renounces, the inheritance generally passes to their children, who must then renounce too, including a child already conceived but not yet born. Where both parents have custody, which is the usual case, both parents must declare the renunciation for their child.

Which probate court?

The certified declaration, or the recorded Erbschein application, goes to the competent probate court. The missions explain that this is the local court for the district where the deceased had their habitual residence at death; if that was not in Germany, the court for their last habitual residence in Germany. If the deceased never had a habitual residence in Germany, the Schöneberg Local Court in Berlin is responsible, where the deceased was German or there is property in Germany. Our guide to documents for Germany explains when an Australian notary and apostille are used for other German documents.

Where do apostilles fit in?

Neither the Erbschein declaration recorded by a German consular officer nor a signature certified by a German mission needs an apostille, because each is a German official act. Apostilles become relevant for Australian public documents that the German probate court or land registry receives, such as a certified copy of an Australian grant of probate, if the court asks for one. Germany is a member of the Hague Apostille Convention; check the HCCH status table on the day. In Australia, only DFAT issues apostilles. Ask the probate court, as the receiving authority, what form it wants each Australian document in before ordering apostilles.

An illustration

This is an illustration, not a real case. A German-born woman who lived in Adelaide for forty years dies, leaving a savings account in Hamburg. Her son, an Australian citizen, completes the missions' questionnaire, posts copies of her death and marriage certificates, his birth certificate and the Australian grant of probate to the Consulate General in Sydney, and receives a draft. By arrangement, he attends the honorary consul's office in Adelaide with the originals, where his sworn declaration is recorded, and it is sent to the probate court for her last residence in Germany.

Common mistakes to avoid

• Asking an Australian notary to take the Erbschein declaration, which must be recorded by a German consular officer, court or German notary.
• Missing the six months for renouncing while living abroad.
• Renouncing without dealing with your children's shares, which then pass to them.
• Only one parent signing a child's renunciation when both have custody.
• Assuming German law applies to a German who lived in Australia.
• Sending originals by post when the consulate asks for plain copies first.

In short

Inheriting in Germany from Australia starts with which law applies: usually the law of the deceased's last habitual residence. To prove the inheritance in Germany, apply for an Erbschein through the Consulate General in Sydney, which records the sworn declaration in person; an Australian notary cannot. To renounce, send a declaration with a signature certified by a German mission or honorary consul to the probate court within six months, and renounce for your children too. See our guide to overseas inheritance documents, and our apostille service for other German paperwork.

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If a German court or lawyer has asked for an Australian document, send us what they asked for, and we will explain each step before you book.