will not be able to receive letters of administration in Germany. Likewise, a German executor does not have authority to act in the U.S. While it may be impractical, some States in the U.S. will issue letters to a non-resident executor while others have a strict residency requirement for personal representatives. How quickly can the cross-border estate be resolved, and what, if any, are time limits applicable? Since Germany does not require a formal probate court-supervised administration of estates, disputes can be resolved more expeditiously as long as they are resolved out of court. However, depending on the complexity of the estate and the family situation, litigating inheritance disputes in Germany for U.S.- based claimants may take several years regardless of whether we litigate entitlement issues in probate court or forced share claims in civil court. Can your law firm settle American estates on your own in the USA? We settle decedent estates on our own on a regular basis in California and elsewhere in the United States with the assistance of local counsel if the decedent is German or of German descent or if beneficiaries are German or from German-speaking countries. What are the issues and complexities when litigating cross border estates between Germany and the USA? Civil procedure and probate procedure in Germany are very different from what U.S. based clients and attorneys expect. The substantive law is very different with unexpected surprises as well. It is critical that clients and their attorneys are aware of and understand these differences at all stages of a case in order to secure their best cooperation toward a successful outcome. The requirement to produce certified translations for foreign language documents, Apostilles for foreign public records, and legal opinions to prove Germany, distributions from an estate in Germany, and inherited accounts in Germany may still be reportable to the IRS depending on the value. Failure to meet IRS reporting requirements can result in severe penalties for U.S. citizens and permanent residents. How is an estate dealt with if there are assets in the United States and Germany? This situation requires separate administrations in each jurisdiction. In the United States a personal representative typically administers the estate whereas the heirs themselves settle the estate in Germany based on a certificate of heirship (Erbschein) which is a court order identifying the heirs and their respective shares. The personal representative of a decedent’s estate in the U.S. cannot automatically proceed to settle an estate in Germany. Letters issued to an executor or administrator in the U.S. do not provide authority to act in Germany because probate courts in the U.S. do not have jurisdiction over assets and individuals in Germany. If an executor appointed in the U.S. intends to administer the same decedent’s estate in Germany, it will be necessary to obtain letters testamentary from a German probate court. In the event of intestate succession a personal representative appointed in the U.S. 20 LAWYER MONTHLY MAY 2024
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