Right of inheritance of the state
When does the state have a right of inheritance?
Pursuant to Section 1936 of the Civil Code, the country in which the decedent had his or her last domicile at the time of the death or, if this cannot be ascertained, his or her habitual residence, shall inherit if there are no relatives, spouse or life partner of the decedent at the time of the death. Otherwise, the right of inheritance accrues to the Federation.
Can the state be excluded from the inheritance? Any instructions of the decedent cannot exclude the right of inheritance of the state. This follows from Section 1938, according to which the testator can only exclude relatives, the spouse or the life partner from the legal succession by means of a will. There is no provision for excluding the state from inheritance.
It is conceivable, however, that the state may participate in the inheritance only as a co-heir. For example, in a will the testator can bequeath only a fraction of the inheritance to an heir, while the remaining share goes to the state.
Can the state disclaim the inheritance?
Pursuant to Section 1942 (2) of the German Civil Code, the state is not permitted to disclaim the inheritance. The state is therefore also obliged to settle an overindebted estate.
How is the state's right to inherit determined?
As a rule, it is the responsibility of the probate court to determine the rightful heirs in the event of death. If this determination is unsuccessful, the probate court is required by Civil Code Section 1965 to initiate a public notice inviting the filing of inheritance rights. This procedure is set out in Sections 433 et seq. of the Act on Proceedings in Family Matters and in Matters of Voluntary Jurisdiction (FamFG). Within a time limit set by the probate court, potential heirs have the opportunity to contact the court.
If these efforts are unsuccessful, the probate court must determine by means of an order pursuant to Section 38 FamFG that no heir other than the state exists. However, this order acts more as a presumption that the state has become the heir.
However, should another heir emerge and be able to prove his or her right to inherit, for example by means of a will or inheritance contract, this presumption is rebutted and the order can be set aside.
Prior to the determination of the State's right to inherit, creditors of the estate may not claim against the State on the basis of principles of inheritance liability pursuant to Section 1966 of the Civil Code.
