Court-appointed administrator – restrictions on the scope of duties and tasks

Who is the administrator representing?

If the heirs are not known and there is an interest in securing the estate, the probate court can appoint an administrator. According to Section 1960 (1) BGB, the probate court must ensure the security of the estate until the inheritance is accepted, insofar as there is a need. The same applies if the heir is unknown or if it is uncertain whether he has accepted the inheritance. The estate administrator to be appointed by the probate court in accordance with Section 1960 (2) BGB is the legal representative of the heir. In this capacity, and not as a representative of the estate or a fiduciary official, he has to carry out his main task of securing and preserving the estate for the actual heirs, with, in principle, unlimited power of representation and authority to dispose of the estate. In this context, the estate administrator has to preserve and administer the estate and safeguard the financial interests of the heirs yet to be determined.

When are heirs unknown or when is there a need for security?

One reason for appointing a judicial estate administrator is if the heir is unknown to the probate court or if the known heir has not yet accepted the inheritance. It is sufficient if, in the court's view, there are not insignificant doubts regarding the inheritance or the declaration of acceptance. An heir is unknown if there are more than insignificant doubts regarding his or her existence or identity. When assessing whether the heir is unknown, the point of view of the probate court when deciding on the ordering of the security measures is to be assumed. If the judge hearing the case cannot be convinced without extensive investigations as to which of several possible persons has become the heir, the heir is deemed to be unknown. Thus, an unknown person also exists if the amount of the inheritance quota is unclear.

There is only a reason to appoint a court-appointed administrator if the existence of the estate is endangered without appropriate protective measures by the probate court. This is the case, for example, if the estate includes a residential property for which regular payments are to be made to avoid legal disadvantages and it is to be feared that unjustified enforcement measures on a large scale will be taken against the estate. However, there is no need for security if a reliable administration of the estate by the provisional heir, co-heir or relative of the deceased is guaranteed.

Can an estate administrator also be appointed if only some heirs are unknown but other heirs are known?

Yes, even if there are several heirs, only some of whom are known and others do not exist, it is possible to appoint a curator for the unknown heirs. The probate court then has to make a decision regarding a partial estate administration. The curator then only represents the unknown heirs and not the already known heirs.

In particular, if there are only heirs of more distant orders, it may be the case that on the one hand there are known heirs whose (minimum) inheritance shares have been determined and on the other hand there are further heirs who are not (yet) known. If, for example, the third-order relatives on the paternal side are known, it is clear that the inheritance shares of these relatives together make up at least ½ of the inheritance. For these known heirs, a certificate of inheritance would then have to be applied for, showing the shares of these heirs, which together amount to ½.

However, if the third-order relatives on the mother's side are unknown, then a partial estate administration would have to be ordered for them, and only for them. It should therefore be noted that, insofar as a majority of heirs come into consideration, it must be examined separately for each share of the estate and each possible heir whether the conditions for the appointment of an estate administrator are met. If only individual heirs are unknown, no overall administration of the estate can be ordered. In this respect, only a partial administration of the estate for the unknown heirs can be considered.

What legal remedy is to be filed if the order of the estate administration was erroneous?

In the case of the order of the estate administration, it concerns a decision of the judicial officer in accordance with § 3 No. 2 letter c) RPflG. According to § 11 Abs.1 RPflG, the legal remedy that is admissible under the general procedural provisions is admissible against this. The court has decided by way of a decision that constitutes a final decision under § 38 (1) FamFG. The appeal is therefore admissible under §§ 58 et seq. FamFG. A specific application is not required as part of the appeal. However, the appeal submission must be capable of being interpreted in a benevolent manner to determine the aim of the appeal. In particular, it should be clear whether the decision is being contested in its entirety or only in part. It should be noted that a decision granting the heir's application for the appointment of an estate administrator is not contestable; see section 359 (1) of the FamFG.

Can the order certificate of the estate administrator be withdrawn?

There is no provision corresponding to section 353 of the FamFG that regulates the withdrawal of the order certificate of the estate administrator. If an appeal against the appointment order is successful, the appointment of the estate administrator is revoked. In this case, the estate administrator must return the appointment himself.

Can an administrator of the estate waive the inheritance for the unknown heirs?

The administrator of the estate is not authorized to accept or waive the inheritance for the unknown heirs. The fact that the administrator, as the representative of the unknown heirs, may not influence their status as heirs by accepting or disclaiming the inheritance is also directly expressed in the wording of Section 1960 of the German Civil Code, according to which the probate court, insofar as there is a need, “until the acceptance of the inheritance” has to take the necessary measures to secure the estate and can appoint a curator (administrator of the estate) for the person who becomes an heir. The right to disclaim the inheritance is a right to which only the heir is entitled.

Can an estate curator disclaim an inheritance of the testator that has fallen into the estate (so-called sub-estate)?

It is not uncommon for the estate in turn to include an inheritance that the testator had already inherited before his own death. If a curator has been appointed for the estate, e.g. because the heirs are unknown, the question also arises here as to whether the estate curator can disclaim the inheritance that has fallen into the testator's estate if the testator himself had not yet accepted the inheritance and the testator died before the deadline for disclaiming the inheritance had expired. It may make economic sense to disclaim this other inheritance that has become part of the estate if, for example, this sub-estate is heavily in debt. The disclaimer of the inheritance that has become part of the estate also has nothing to do with the main inheritance, which is the reason why the estate administrator was appointed in the first place. Nevertheless, the supreme court has ruled that the estate administrator cannot disclaim an inheritance that has fallen into the estate for the (heir) heirs. This right, too, as a highly personal right, can only be exercised by the (heir) heirs. According to § 1952 para. 1 BGB, the right of the heir to disclaim the inheritance is inheritable. If the heir dies before the expiry of the deadline for disclaiming the inheritance, the deadline does not end before the expiry of the deadline for disclaiming the inheritance prescribed for the heir (Section 1952 (2) BGB). The disclaimer period for the sub-estate of the heir to the inheritance therefore ends, even if it had already begun for the deceased heir, at the earliest with the end of the disclaimer period with regard to the main estate.