Private client law in Germany: overview

A Q&A guide to private client law in Germany.

The Q&A gives a high level overview of tax; tax residence; inheritance tax; buying property; wills and estate management; succession regimes; intestacy; trusts; charities; co-ownership; familial relationships; minority and capacity, and proposals for reform.

To compare answers across multiple jurisdictions, visit the Private client Country Q&A tool.

The Q&A is part of the global guide to private client law. For a full list of jurisdictional Q&As visit www.practicallaw.com/privateclient-guide.

Contents

Taxation

Tax year and payment dates

1. When does the official tax year start and finish in your jurisdiction and what are the tax payment dates/deadlines?

The tax year runs from 1 January to 31 December. Taxpayers must:

  • File an annual tax return by 31 May of the year following the tax year. Taxpayers can apply to extend this deadline.

  • Pay income tax within one month of receiving the tax assessment.

Taxpayers whose income is not predominantly subject to withholding tax must make advance payments every three months (10 March, 10 June, 10 September and 10 December). Withholding taxes apply, for example, to employment and investment income.

Domicile and residence

2. What concepts determine tax liability in your jurisdiction (for example, domicile and residence)? In what context(s) are they relevant and how do they impact on a taxpayer?

Domicile

German law does not recognise the concept of domicile.

Residence

Tax liability is determined by the concept of residence. An individual is a German resident if he has either of the following in Germany:

  • Permanent home.

  • Habitual abode.

A permanent home is assumed as the place where an individual has a dwelling and it can be inferred that he maintains and uses that dwelling with certain regularity. However, there is no fixed minimum amount of days for use of the dwelling.

A habitual abode is assumed when an individual remains in an area under circumstances that induce that he will stay there not only temporarily. If the individual remains there for six months or more, a habitual abode is assumed by law.

Residence is assessed using objective criteria such as an unlimited rental agreement, which is why the intention to use a dwelling or to remain in an area alone cannot constitute a residence.

A resident's worldwide income and assets are subject to:

Other

Taxation on exit

 
3. Does your jurisdiction impose any tax when a person leaves (for example, an exit tax)? Are there any other consequences of leaving (particularly with regard to individuals domiciled in your jurisdiction)?

Capital gains tax. Persons who are resident in Germany for ten years or more must pay an exit tax on capital gains on substantial shareholdings (that is, a shareholding of at least 1% of the company's total shares at any time over the previous five years).

Income tax. If a German resident emigrates to a tax haven he may also be liable for tax on income from all non-foreign sources for ten years after emigration. Generally, a country qualifies as a tax haven if the effective tax burden in that country is less than two-thirds of the equivalent tax burden in Germany (for example, through offering immigrants preferential tax treatment).

Inheritance tax (IHT) and gift tax. Former German residents are generally subject to German IHT and gift tax for five years after emigration (ten years if they emigrate to the US) on all assets transferred or received by them. However, a German citizen emigrating to a tax haven may be liable for IHT and gift tax on all assets qualified as non-foreign sources for ten years after emigration.

Generally, a transfer between non-residents can only trigger IHT or gift tax on such property that is located in Germany (see Question 9).

Temporary residents

4. Does your jurisdiction have any particular tax rules affecting temporary residents?

There are no specific rules for temporary residents. Temporary residents are treated as residents if they have a permanent home or habitual abode in Germany (see Question 2).

Taxes on the gains and income of foreign nationals

5. How are gains on real estate or other assets owned by a foreign national taxed? What are the relevant tax rates?

Non-residents pay tax only on:

  • Capital gains on business assets, including commercial property and interests in companies, if the assets are economically connected with a permanent establishment in Germany.

  • Capital gains on privately held or business-related immovable property situated in Germany.

  • Capital gains on rights that are listed in a German public register.

Capital gains on the sale of privately held shares in German corporations are only taxable if the shares form a substantial shareholding of at least 1% of the company's share capital (see Question 3). In these circumstances, 60% of the capital gains are taxed at a progressive rate of up to 45% plus a solidarity surcharge (Solidaritätszuschlag) (see Question 6), depending on the taxpayer's individual taxable base.

 
6. How is income received by a foreign national taxed? Is there a withholding tax? What are the income tax rates?

Non-residents receiving income from German sources are generally subject to both:

  • Progressive income tax at a rate of up to 45%.

  • A solidarity surcharge of 5.5% of the tax due.

Non-residents pay tax on income from a German source, for example:

  • Income economically connected with a permanent establishment in Germany (see Question 5).

  • Income from employment in Germany (including self-employment).

  • Income from German real estate.

  • Dividends from German companies and capital gains if a substantial shareholding in German companies is sold (see Questions 3 and 5).

Non-residents generally do not pay income tax on non-business interest income. Income from capital investments (for example, dividends) is subject to withholding tax at a flat rate of 25% plus the solidarity surcharge (see above).

Inheritance tax and lifetime gifts

7. What is the basis of the inheritance tax or gift tax regime (or alternative regime if relevant)?

Each beneficiary is liable for inheritance tax (IHT) or gift tax on the value of his share of the estate received, regardless of his personal wealth. Generally, there are personal allowances for relatives (see Question 8).

On 17 December 2014, the German Federal Constitutional Court held that certain rules regarding tax exemptions for the transfer of business assets or a shareholding in a business entity must be amended by the German Parliament by 30 June 2016.

The amendment bill was approved by the first and the second chamber of the German Parliament on 29 September and 14 October 2016 respectively. The amended version is effective as of 1 July 2016.

 
8. What are the inheritance tax or gift tax rates (or alternative rates if relevant)?

Tax rates

The current inheritance tax (IHT) and gift tax rates range from 7% to 50%, depending on both the:

  • Relationship between the transferor and the beneficiary.

  • Market value of the estate received.

Spouses and descendants pay IHT and gift tax at a rate of 7% to 30%. Transfers between most other relatives are taxed at a rate of 15% to 43%. Between unrelated persons, the applicable tax rate is 30% for less than EUR6 million or 50% for more than EUR6 million. Transfers of business assets are taxed at a rate of 7% to 30% (see below), regardless of the relationship between the transferor and the beneficiary.

Tax free allowance

The following tax-free allowances apply in case of succession and if either the transferor or the beneficiary is a resident:

  • Spouses. They receive a personal allowance of EUR500,000 and a maintenance allowance of up to a maximum of EUR256,000.

  • Descendants. They receive a personal allowance of EUR400,000 and an age-dependent maintenance allowance of:

    • EUR52,000 for descendants aged under five years;

    • EUR41,000 for descendants aged five to 11 years;

    • EUR30,700 for descendants aged 11 to 16 years;

    • EUR20,500 for descendants aged 16 to 21 years;

    • EUR10,300 for descendants aged 21 to 28 years.

Non-taxable survivorship annuities reduce the maintenance allowance by the amount of the annuity's capital value.

Exemptions

Exemptions apply to the transfer of business assets or a shareholding of at least 25% in a business entity. Tax exemptions of 85% or 100% of the business assets (except for administrative assets (Verwaltungsvermögen) such as cash, minority shareholdings, real estate let out to third parties, artwork, classic cars and yachts) are available if the following criteria are met (Verschonungsabschlag):

  • Payroll expenses do not decline for:

    • five years: 85% exemption;

    • seven years: 100% exemption.

  • The business assets or the share in the entity are not sold for:

    • five years: 85% exemption;

    • seven years: 100% exemption.

  • No withdrawals are made that exceed the attributable profits and capital contributions by the transferee by more than EUR150,000 for:

    • five years: 85% exemption;

    • seven years: 100% exemption.

However, the exemption is reduced proportionally if a single transferee receives such business assets that amount to more than EUR26 million but less than EUR90 million within ten years. If the value of the business assets that a single transferee receives exceeds the EUR90 million amount, the exemption will not be granted at all.

However, the transferee can apply for a personal test (Bedürfnisprüfung). The IHT will be waived if, and to the extent that, it exceeds 50% of the transferee's private wealth plus the private or administrative business assets received if the transferee receives more than EUR26 million.

Additionally, the transferee can apply for a deferral of payment for up to seven years under the same 85% or 100% exemption conditions (see above), but this will result in an annual interest of 6%.

There is no IHT or gift tax on:

  • An inter vivos transfer (during the lifetime) of the family home to a spouse.

  • An equalisation of the accrued gains made during the course of a marriage, where the community of surplus statutory property regime (as provided for by the German matrimonial regime (see Question 40)) or a similar foreign regime applies.

  • Donations and dispositions by will to charitable organisations.

Techniques to reduce liability

Liability for IHT or gift tax can be reduced by:

  • Transferring a business entity or a shareholding in that entity. Under specific circumstances tax exemptions of up to 85% or up to 100% are possible for corporate-related assets.

  • Transferring real estate, which is rented for residential purposes (a tax allowance of 10% is available).

  • Making several lifetime gifts (as beneficiaries are granted gift tax allowances every ten years).

  • Utilising the tax allowances from the transferor's spouse.

  • Transferring assets retaining a life interest (in particular, usufruct).

Other

IHT and gift tax may be avoided by structuring the abode of the transferor and/or the beneficiary and structuring the type of assets to avoid tax liability (see Question 9).

 
9. Does the inheritance tax or gift tax regime apply to foreign owners of real estate and other assets?

If neither the transferor nor the beneficiaries are residents, inheritance tax (IHT) and gift tax are only due on certain properties situated in Germany (for example, real estate and business property).

Generally, the transfer of a bank account between non-residents does not trigger IHT or gift tax.

 
10. Are there any other taxes on death or on lifetime gifts?

Generally, no other taxes are due on death or on lifetime gifts. However, if business assets are converted into private assets in the course of the transfer, income tax may be payable. Real estate transfer tax may also be payable in any cases where real estate is transferred to a non-spouse/non-descendant for the part that encumbers the beneficiary with a consideration (for example, debt or usufruct).

Taxes on buying real estate and other assets

11. Are there any other taxes that a foreign national must consider when buying real estate and other assets in your jurisdiction?

Purchase and gift taxes

Real estate transfer tax with differing regional rates ranging from 3.5% to 6.5% applies to the:

  • Acquisition of real estate.

  • Acquisition of a substantial shareholding (at least 95%) or respective beneficial ownership in a company holding real estate.

A tax exemption is available for real estate transfers, for example, to a spouse or a descendant.

Wealth taxes

Not applicable.

 
12. What tax-advantageous real estate holding structures are available in your jurisdiction for non-resident individuals?

The following property holding structures are available in Germany:

  • Corporations (the tax amount on income received may be lower).

  • Fiscally transparent partnerships (tax is levied on the individual investors rather than on the entity itself).

  • Foundations (where the relevant property is used for charitable purposes).

For companies that solely administer their own real estate, there is an extended trade tax exemption, relieving such companies from trade tax.

The real estate transfer tax may be avoidable under certain circumstances, for example, the purchase of shares in a company that owns the real estate by two unrelated companies (and neither of the two buyers owns 95% or more of the acquired shares).

Taxes on overseas real estate and other assets

13. How are residents in your jurisdiction with real estate or other assets overseas taxed?

A German tax resident is subject to German income tax on his worldwide income. However, double taxation can generally be avoided by applying available double tax treaties (see Question 14) or through a foreign tax credit under domestic tax law.

International tax treaties

14. Is your jurisdiction a party to many double tax treaties with other jurisdictions?

With regard to income and wealth taxes, Germany has entered into double taxation treaties with about 90 countries, including the UK and the US.

With regard to inheritance tax (IHT) and gift tax, Germany has entered into double taxation treaties with the following states:

  • Denmark.

  • France.

  • Greece.

  • Sweden (IHT has been abolished in Sweden).

  • Switzerland (treaty refers only to IHT).

  • US.

 

Wills and estate administration

Governing law and formalities

15. Is it essential for an owner of assets in your jurisdiction to make a will in your jurisdiction? Does the will have to be governed by the laws of your jurisdiction?

If an individual dies intestate, intestacy rules (legal succession) apply. Under the intestacy rules, the deceased's estate is distributed among his relatives and a spouse or civil partner (see Question 28). If an individual wants to deviate from legal succession, for example in order to determine other heirs or shares, make legacies, testamentary burdens, appoint executors or "disinherit" legal heirs, he must make a will.

Germany recognises the HCCH Convention on the Conflicts of Laws Relating to the Form of Testamentary Dispositions 1961 (Hague Testamentary Dispositions Convention), which prevails despite Regulation (EU) 650/2012 on jurisdiction, applicable law, recognition and enforcement of decisions and acceptance and enforcement of authentic instruments in matters of succession and on the creation of a European Certificate of Succession (Succession Regulation) (EU-Erbrechtsverordnung), which became fully effective on 17 August 2015.

For information about the EU Succession Regulation on Practical Law Private Client, see Practice note, EU Succession Regulation (Brussels IV).

A will is valid if it complies with the law of any of the following:

  • The country of which the testator was a national at the time of making the testamentary disposition or at the time of his death.

  • The place where the testator made the testamentary disposition.

  • The place where the testator had his domicile or habitual residence either at the time of making the testamentary disposition, or at the time of his death.

  • Insofar as immovables are concerned, the place where these are situated.

  • The law that governs or would govern the succession at the time of making the disposition.

 
16. What are the formalities for making a will in your jurisdiction? Do they vary depending on the nationality, residence and/or domicile of the testator?

Under German law, there are three types of dispositions mortis causa, each with sub-categories and different formal requirements.

The three types of dispositions mortis causa are:

  • Wills.

  • Joint wills.

  • Contracts of inheritance.

Wills

Wills are divided into regular and emergency wills.

Regular wills can be made by declaration to a notary (public will) or by a declaration made by the testator (holographic will).

A public will is made by the testator declaring his last will to the notary or by handing the notary a document and stating that the document contains his last will. The testator may hand over the document either unsealed or sealed; it does not have to be written by him.

A holographic will must be written and signed by the testator in his own hand. The testator must state the time when (day, month and year) and the place where he wrote it down and the signature must contain the testator's first name and surname. Later amendments must be signed separately.

Testators can revoke a will and individual dispositions contained in a will at any time. Revocations are made by will and must follow the same formalities for making a will. A will can also be revoked by the testator intending such revocation by destroying the testamentary instrument or by making changes to it that customarily express the intention to revoke a written declaration of intent. A will made before a notary is deemed to have been revoked if the document that was taken into special official custody is returned to the testator.

Joint wills

Joint wills may only be made by spouses (and civil partners). To make a joint will, it is sufficient if one of the spouses makes a will in the stipulated manner and the other spouse co-signs the joint declaration in his own hand. The co-signing spouse must state the time (day, month and year) and the place of signing.

Contracts of inheritance

Contracts of inheritance can only be made by being recorded by a notary in the simultaneous presence of both parties.

Neither form requires a witness.

The formalities do not vary depending on the nationality, residence and/or domicile of the testator. However, the applicable law must be taken into consideration. If the succession is not governed by German law (see below) the type of disposition mortis causa (for example, joint will, contract of inheritance) may not be recognised by the applicable law even if formalities were observed.

A will is not governed by German law where the deceased's habitual residence at the time of death was not in Germany (see Question 18).

Redirecting entitlements

17. What rules apply if beneficiaries redirect their entitlements?

Beneficiaries cannot make a post-death variation.

An heir can sell his share in the estate after the testator's death by entering into a contract before a notary public.

If a beneficiary does not want to receive his portion of the estate, he must disclaim his right within six weeks of receiving notice of the death of the deceased and the inheritance. The time limit is extended to six months if either the:

  • Deceased had his habitual residence outside Germany.

  • Heir was outside Germany when the six-week period began to run.

The disclaimer is made by declaration to the probate court. The declaration must be made in the presence of, and recorded by, the probate court or in notarially certified form.

If the inheritance is disclaimed, the inheritance is deemed not to have devolved on the disclaiming persons. The inheritance devolves on the person who would be entitled to it if the person disclaiming had not been alive at the time the inheritance devolved. In principle, the person disclaiming does not have a right to a compulsory share, but there are exceptions (see Question 25).

During the lifetime of the testator, his relatives and the spouse may renounce their right of intestate succession by contract with the testator. The person renouncing is excluded from intestate succession as if he had no longer been alive at the time of the devolution of the inheritance; he does not have a right to a compulsory share. Therefore, renouncing has the same effect as disclaiming. However, if a descendant or a collateral relative of the testator renounces his right of intestate succession, the effect of the renunciation also extends to his descendants, unless otherwise provided.

The renunciation may be restricted to the right to a compulsory share. The restriction of the renunciation to the right to a compulsory share does not lead to an extension of the compulsory shares of other legal heirs (as would be the case with a complete renunciation).

Both the renunciation of the inheritance and the renunciation of the compulsory share require the same form as the disclaimer.

Validity of foreign wills and foreign grants of probate

18. To what extent are wills made in another jurisdiction recognised as valid/enforced in your jurisdiction? Does your jurisdiction recognise a foreign grant of probate (or its equivalent) or are further formalities required?

Validity of foreign wills

Wills made in another jurisdiction are recognised in Germany (see Question 15).

Validity of foreign grants of probate

Foreign grants of probate are not recognised. An heir must ask the competent probate court to issue a German certificate of inheritance (see Question 21, Establishing title and gathering in assets).

Since 17 August 2015, Regulation (EU) 650/2012 on jurisdiction, applicable law, recognition and enforcement of decisions and acceptance and enforcement of authentic instruments in matters of succession and on the creation of a European Certificate of Succession (Succession Regulation) brings some relief in this respect, as it provides for a European Certificate of Succession to be issued for use in another member state and furnishing evidence of the legal position of the heirs. However, national certificates are not replaced by the European Certificate. Like the German certificate, it also establishes the presumption of completeness and correctness and enjoys public faith in this respect. Unlike the German certificate, where only positive knowledge is damaging, a grossly negligent lack of knowledge does destroy the public faith of the European Certificate.

For information about the EU Succession Regulation on Practical Law Private Client, see Practice note, EU Succession Regulation (Brussels IV).

Death of foreign nationals

19. Are there any relevant practical estate administration issues if foreign nationals die in your jurisdiction?

German law on succession will not be applicable if foreign nationals (without residence in Germany) die in Germany. However, if the foreign national had his residence in Germany or if the estate or parts of it are located in Germany, German probate courts will have jurisdiction. However, the functions of the probate courts are rather limited unless there are disputes. Regulation (EU) 650/2012 on jurisdiction, applicable law, recognition and enforcement of decisions and acceptance and enforcement of authentic instruments in matters of succession and on the creation of a European Certificate of Succession (Succession Regulation) has lead to a synchronisation of the applicable law and the jurisdiction of the probate courts (see Question 18, Validity of foreign grants of probate).

Administering the estate

20. Who is responsible for administering the estate and in whom does it initially vest?

Responsibility for administering

A testator can appoint an executor (Testamentsvollstrecker). German law gives broad powers to executors but the testator can limit or exclude these powers. For example, an executor can be given the power to:

  • Distribute the estate.

  • Administer a single bequest.

  • Administer the estate for a defined period of time. The maximum period is 30 years. However, the testator can direct that the administration continues until either the:

    • death of the heir (also subsequent heirs (Nacherben)) and/or of the executor (also his successor); or

    • occurrence of another event in the person of either the heir or the executor (for example, birth of children, completion of studies, and so on).

The executor excludes the heir(s) from the administration of the estate (for example, only the executor executes the shareholders' rights, if a company belongs to the estate).

The executor must administer the estate in the proper manner and must follow the testamentary instructions of the testator.

Alternatively or additionally, the testator may issue transmortal or postmortal powers of attorney which, however, can generally be revoked by the heir or the executor.

In the special cases of administration of the estate (Nachlassverwaltung) and estate insolvency, the administrator or insolvency administrator is responsible for administering the estate.

If no executor or administrator has been appointed, the heir himself administers the estate as his own property. If there is more than one heir (that is, community of heirs), the heirs are jointly entitled to the management of the estate. Each co-heir must vis-à-vis the other co-heirs co-operate in measures that are necessary for the due and proper management of the estate. Measures necessary for preservation can be undertaken by each co-heir without the co-operation of the others.

Vesting

On a person's death his property passes as a whole (all assets and liabilities), undivided and automatically (Vonselbsterwerb) to the heirs (universal succession (Gesamtrechtsnachfolge)). If the deceased leaves more than one heir, the estate becomes the joint property (Gesamthandseigentum) of the heirs (except for succession in partnerships (not companies)). Each co-heir is, in principle, entitled at any time to request partitioning of the estate.

 
21. What is the procedure on death in your jurisdiction for tax and other purposes in relation to:
  • Establishing title and gathering in assets (including any particular considerations for non-resident executors)?

  • Paying taxes?

  • Distributing?

Establishing title and gathering in assets

The deceased's will and other dispositions taking effect on death must be filed with the probate court (unless the documents are already in the court's custody).

The probate court will officially read the will and disclose its contents to the heirs.

After the will has been read (or, in the case of intestacy, immediately) the heirs can ask the probate court for a certificate of inheritance. The certificate specifies:

  • The heirs' names.

  • Their share in the inheritance.

  • The executor's name if the testator has appointed one (see Question 20).

If German law governs the succession, the probate court issues the certificate. If the law of a foreign jurisdiction governs the succession, the probate court issues a certificate relating only to assets and property located in Germany (see Question 19). The certificate of inheritance gives the heirs (or the executor) the right to gather in assets.

Certificate of inheritance. The costs for the certificate of inheritance depend on the value of the estate less debts at the time of the succession and can be taken from a codified declining table of fees. For example, if the estate has a value of EUR1 million, the costs for the certificate of inheritance amount to EUR3,470.

Certificate of executorship. An executor (if appointed) can ask the probate court for a certificate of executorship, which officially verifies his authority to act as executor.

Both the certificate of inheritance and the certificate of executorship enjoy public faith insofar as the authenticity of the certificate of inheritance is presumed. This means that it is deemed to be correct unless the contractual partner knows that it is incorrect. Therefore, only positive knowledge is damaging, but not, for example, merely a grossly negligent lack of knowledge.

Procedure for paying taxes

The beneficiaries must file a notice of inheritance with the competent tax authority within three months of receiving the notice of their appointment as beneficiary. At the request of the tax authority, the beneficiaries (or the executor, if appointed) must file an inheritance tax (IHT) return.

Distributing the estate

If there is a community of heirs, the estate is distributed in kind among the heirs according to what is agreed and to testamentary directions of the testator (if any). There is no time limit for distribution. Until distribution, the estate remains the joint property of the heirs (see Question 39).

 
22. Are there any time limits/restrictions/valuation issues that are particularly relevant to an estate with an element in another jurisdiction?

The time limit for disclaiming an inheritance is six weeks after receiving notice of the death of the deceased and the inheritance. The period is extended to six months if the deceased's last residence was only outside Germany or if the heir is resident outside Germany at the beginning of the period.

 
23. Is it possible for a beneficiary to challenge a will/the executors/the administrators?

A beneficiary or potential beneficiary can challenge the validity of a will before a civil court. If the court deems the will to be invalid, the intestacy rules apply (if there is no other valid will) (see Question 28).

Executors must report regularly to the heirs. In the event of misconduct or a breach of duty by the executor, the heirs can ask the probate court to appoint an alternative executor and can claim damages.

 

Succession regimes

24. What is the succession regime in your jurisdiction (for example, is there a forced heirship regime)?

If there is no will, intestacy rules apply (see Question 28). By making a will an individual can:

  • Choose his heirs and stipulate the share each heir receives.

  • Empower a person to make a claim against the heirs without making that person an heir. This claim can be for an amount of money, a share of the deceased's estate, an item or anything else.

The testator enjoys full testamentary freedom, which, however, is limited by a forced heirship regime according to which the testator's descendants, parents (if they are not excluded by the descendants) and spouse/civil partner are entitled to a compulsory share (see Question 25).

Forced heirship regimes

25. What are the main characteristics of the forced heirship regime, if any, in your jurisdiction?

Under the forced heirship regime, certain categories of relatives (see Question 24) are entitled to make a claim for a compulsory share (Pflichtteil) of the deceased's estate if they are excluded from the testator's will or if the share granted to them is less than their compulsory share.

A relative's compulsory share generally amounts to 50% of the value of that relative's share on intestacy. It is a monetary claim and not a claim to a share of the estate.

Legal heirs can claim their compulsory share even if they disclaim the inheritance where either:

  • A legal heir has been limited by the designation of a subsequent heir, the appointment of an executor, or a direction concerning the partitioning of the estate.

  • A legacy or testamentary burden has been imposed on a legal heir.

If the testator made a gift to a third party, a person entitled to a compulsory share may claim, in augmentation of his compulsory share, the amount by which the compulsory share increases if the object given is added to the estate. The gift is taken into full account within the first year prior to the devolution of the inheritance, and is taken into account to a degree decreased by one-tenth during each further year prior to the devolution of the inheritance. If ten years have passed since the donated object was given, the gift is not taken into account. If the gift was made to the spouse, the period does not commence until the dissolution of the marriage.

If the deceased is not survived by any of these individuals, he is free to distribute his whole estate. He is otherwise free to distribute 50% of his estate. However, if the legal heirs have renounced their right to a compulsory share (see Question 17), the testator is also free to distribute his entire estate.

Avoiding the regime

The regime can always be avoided if the legal heir agrees to renounce his right to his compulsory share (see above) or, after the death of the testator, to refrain from claiming his compulsory share.

Avoiding the regime against the will of the legal heir is much more difficult.

A testator may deprive a descendant of his compulsory share if the descendant:

  • Makes an attempt on the life of the testator or of a person close to the testator.

  • Is guilty of certain offences against the testator or a person close to the testator.

  • Wilfully violates the statutory obligation to support the testator.

  • Is finally sentenced to at least one year of imprisonment without probation because of an intentional criminal offence, making the participation of the descendant in the estate unreasonable for the testator.

Outside these extreme cases, it is more difficult to avoid the regime. In a European comparison, the German forced heirship regime is located in the middle range. The testator could move his habitual residence to a country where there is no (or less strict) forced heirship regime. The success of such a step depends on various factors, such as the location of assets of the estate and the international private law rules in the target country. In all events, Regulation (EU) 650/2012 on jurisdiction, applicable law, recognition and enforcement of decisions and acceptance and enforcement of authentic instruments in matters of succession and on the creation of a European Certificate of Succession (Succession Regulation) has made this a more feasible possibility.

More practical than trying to avoid the regime are steps to reduce the compulsory share, for example, by way of corporate law measures, changes of the matrimonial property regime of the testator or by donation of the assets of the estate during the testator's lifetime (the assets are safe from claims to the augmentation of compulsory shares ten years after the donation; until such time the claim decreases by 10% each year).

Assets received by beneficiaries in other jurisdictions

If German succession law applies, the forced heirship regime applies to all assets irrespective of the assets' location (see also Questions 26 and 27) and the person and location of the beneficiary.

Mandatory or variable

See above, Avoiding the regime.

Real estate or other assets owned by foreign nationals

26. Are real estate or other assets owned by a foreign national subject to your succession laws or the laws of the foreign national's original country?

According to Regulation (EU) 650/2012 on jurisdiction, applicable law, recognition and enforcement of decisions and acceptance and enforcement of authentic instruments in matters of succession and on the creation of a European Certificate of Succession (Succession Regulation), as a general rule the deceased's last habitual residence, rather than his nationality, is relevant for the question of which succession law is applicable. However, there is also the possibility to opt for the succession law of an individual's nationality instead.

For information about the EU Succession Regulation on Practical Law Private Client, see Practice note, EU Succession Regulation (Brussels IV).

 
27. Do your courts apply the doctrine of renvoi in relation to succession to immovable property?

According to Regulation (EU) 650/2012 on jurisdiction, applicable law, recognition and enforcement of decisions and acceptance and enforcement of authentic instruments in matters of succession and on the creation of a European Certificate of Succession (Succession Regulation), if German succession law is applicable, it covers all assets, regardless of whether they are movables or immovables or of where they are located. A doctrine of renvoi is accepted if the law of a third state makes a renvoi to the law of a member state or to the law of another third state which would apply its own law (Article 34, Succession Regulation).

For information about the EU Succession Regulation on Practical Law Private Client, see Practice note, EU Succession Regulation (Brussels IV).

 

Intestacy

28. What different succession rules, if any, apply to the intestate?

In the case of intestacy, the order of succession is as follows (each of the following categories excludes the subsequent heirs from receiving a share of the deceased's estate):

  • Children of the deceased and their descendants.

  • Parents of the deceased and their descendants.

  • Grandparents of the deceased and their descendants.

  • Great-grandparents of the deceased and their descendants.

Relatives within a particular category inherit in equal shares (succession per stirpes).

The surviving spouse (or civil partner) also has a right of inheritance, determined by the matrimonial regime:

  • Community of accrued gains. The surviving spouse is entitled to:

    • 25% of the inheritance if there are surviving relatives in the first category (see above) plus a further 25% increase as lump-sum equalisation of accrued gains (alternatively, the surviving spouse may disclaim the inheritance, keep the compulsory portion and additionally demand the actual equalisation of the accrued gains);

    • 50% plus 25% of the inheritance if there are no surviving relatives in the first category, but surviving relatives in the second category.

  • Separation of property or community of property. The surviving spouse is entitled to:

    • 25% of the inheritance if there are surviving relatives in the first category;

    • 50% of the inheritance if there are no surviving relatives in the first category, but surviving relatives in the second category.

If there is a separation of property regime and the surviving spouse is entitled together with one or two children of the deceased, the surviving spouse and each child inherit equal shares.

 
29. Is it possible for beneficiaries to challenge the adequacy of their provision under the intestacy rules?

It is not possible for beneficiaries to challenge the adequacy of their provision under the intestacy rules.

 

Trusts

30. Are trusts (or an alternative structure) recognised in your jurisdiction?

Type of trust and taxation

Trusts are generally not recognised in Germany. However, the following can trigger inheritance tax (IHT) and gift tax:

  • Establishment of a trust or a foundation by residents.

  • Establishment of a trust comprising assets located in Germany.

  • Distributions to beneficiaries, or actual power of disposition of beneficiaries over the trust, during the trust period or on the trust's dissolution, if the beneficiary is a German resident or if the assets distributed are located in Germany.

German corporation tax can apply to:

  • Income received by a foreign trust from German sources.

  • The worldwide income of a foreign trust if its place of management is in Germany and if certain other conditions are met.

Income received by a foreign trust can be attributed to the settlor or the beneficiaries under certain circumstances if they are German residents.

However, a foundation (with legal capacity) can have a similar purpose to a trust even though it is a body corporate. Foundations can have charitable and non-charitable purposes. In the context of succession planning, (non-charitable) family foundations in particular are relevant, either as a private wealth vehicle for liquid assets or as a holding structure.

Family foundations have the purpose of supporting one or several families. The most relevant advantages of a family foundation that often motivates the founders are:

  • The assets (earnings from these assets) are saved from being split up on grounds of the inheritance and removed from the power of disposal of individuals.

  • The assets are held for the family as a whole and family members cannot gain control. Family members can be granted rights of control, however:

    • supply from and influence over the assets (especially shares in companies) can be separated;

    • in contrast to family-run companies, where the heirs can change everything by unanimous agreement, family members cannot dissolve the foundation, transfer assets to third parties or exercise voting rights. Even executorship is not always an expedient alternative, as this generally ends after 30 years (see Question 20);

    • the founder is also free in how he structures the rights of control and information in favour of the beneficiaries (that is, the persons potentially benefitting according to the purpose of the foundation). He can specify in the bye-laws whether beneficiaries have a judicially enforceable claim to benefits or to the orderly management of the foundation;

    • the administration of the assets, and the management of the company, is transferred by the founder to foundation organs who act on their own responsibility. This does not exclude the possibility of these organs also being executed by family members if the founder so wishes.

Inheritance tax (IHT) and gift tax generally accrue on the establishment of a private foundation. To the extent corporate units are endowed, the tax exemptions for corporate-related assets can apply (see Question 8).

Tax on substituted inheritances accrues every 30 years. If the foundation is settled for 29 years only, no substituted IHT should apply.

Residence of trusts

See above, Type of trust and taxation.

 
31. Does your jurisdiction recognise trusts that are governed by another jurisdiction's laws and are created for foreign persons?

Foreign trusts are generally not recognised in Germany as Germany did not ratify the HCCH Convention on the Law Applicable to Trusts and on their Recognition 1985. Therefore, German property law does not recognise the transfer of assets located in Germany to a trust. In these circumstances, the terms of a trust are interpreted in accordance with German law for civil law and tax purposes (see Question 30).

 
32. What are the tax consequences of trustees (for example, of an English trust) becoming resident in/leaving your jurisdiction?

During his residence in Germany, a trustee himself can be subject to unlimited personal income tax liability in Germany (see Questions 2 and 6).

The residence of a trustee in Germany may also establish an effective place of management of the trust in Germany. Therefore, the worldwide income of the trust can be subject to corporate tax if a trustee becomes resident in Germany.

A trustee leaving Germany may trigger corporate tax on the trust's hidden reserves (exit tax at the level of the trust).

 
33. If your jurisdiction has its own trust law:
  • Does the law provide specifically for the creation of non-charitable purpose trusts?

  • Does the law restrict the perpetuity period within which gifts in trusts must vest, or the period during which income may be accumulated?

  • Can the trust document restrict the beneficiaries' rights to information about the trust?

Germany does not have its own trust law (see Question 30).

 
34. Does the law in your jurisdiction recognise claims against trust assets by the spouse/civil partner of a settlor or beneficiary on the dissolution of the marriage/partnership?

If assets governed by foreign property law have been transferred to an irrevocable trust that is valid under foreign trust law, German courts generally do not recognise claims against trust assets on the dissolution of a marriage or partnership.

However, there are provisions to protect the other spouse/civil partner to prevent an abusive reduction in assets. In the statutory matrimonial regime (see Question 40), the final assets of a spouse are increased by the amount by which these assets are reduced as a result of the fact that a spouse, after the beginning of the property regime:

  • Made gratuitous dispositions by which he was not fulfilling a moral duty or showing regard for decency.

  • Squandered property.

  • Performed acts with the intention of disadvantaging the other spouse.

The above apply unless the reduction was effected at least ten years before the end of the property regime or if the other spouse was in agreement with the gratuitous disposition or the squandering.

These provisions are also relevant where any assets are transferred to foundations or in all other cases in which a spouse/civil partner disposes of his assets.

 
35. To what extent does the law of your jurisdiction allow trusts to be used to shelter assets from the creditors of a settlor or beneficiary?

Assets governed by foreign property law, which have been transferred to an irrevocable trust effectively formed under foreign trust law, are not accessible to the beneficiary's creditors. Basically, the same applies with respect to the settlor's creditors, if the assets were transferred more than four years (in exceptional cases, ten years) before insolvency proceedings regarding the creditor's assets opened. Assets governed by German property law can be sheltered to the same extent if the founder transfers the respective assets to a private foundation.

 

Charities

36. Are charities recognised in your jurisdiction?

In Germany, there is no particular legal form that is solely intended for charities. Instead, any corporation can pursue non-profit purposes that allow for tax benefits (see Question 38). In most cases, a foundation (Stiftung) is the most suitable body (legal entity with legal capacity) for charities. A foundation is composed of independent special purpose assets and does not have members or shareholders but beneficiaries. The provisions on foundations are set out in the German Civil Code, as well as in individual but largely harmonised legislation passed by the federal states. The benefactor may either endow his family (see Question 30) or set up a foundation for a charitable purpose.

For charitable undertakings with fewer funds available, charities may also be set up as trust foundations which, as contractual arrangements, do not have legal capacity but are managed by a trustee (for example, a bank or organisation).

In addition, charity work conducted by non-profit limited liability companies (gGmbH) is quite common. As these are "normal" limited liability companies (with a non-profit purpose), the provisions on limited liability companies apply together with the specific provisions of the German Fiscal Code on non-profit organisations.

 
37. If charities are recognised in your jurisdiction, how can an individual donor set up a charity?

The creation of a foundation with legal personality requires an endowment transaction and the recognition of the foundation by the competent public authority of the German federal state in which the foundation is to have its statutory seat (foundation supervisory authority) (Stiftungsaufsicht). An endowment transaction during the lifetime of the founder must be made in writing. It must contain a binding declaration by the founder that he will dedicate assets, which may also be intended for depletion, to achieve an object specified by him. The endowment transaction must include a charter for the foundation comprising the following information:

  • Name of the foundation.

  • Seat of the foundation.

  • Objects of the foundation.

  • Assets of the foundation.

  • Composition of the foundation's board.

For the foundation to be recognised by the foundation supervisory authority, the endowment must satisfy the requirements above. In addition, the long-term and sustained achievement of the object of the foundation must appear to be secured and the object of the foundation cannot endanger the common good. It is also possible to establish a foundation for a specific period the assets of which are to be depleted in pursuing its purpose (known as a "principal-depleting foundation" or a "limited term foundation" (Verbrauchsstiftung)). In this case, the ongoing performance of the object of the foundation is deemed secured if the foundation is to exist for a period defined in the endowment transaction of at least ten years. The requirements above also apply if the foundation is established on the founder's death. Generally, a foundation with a capital of less than EUR50,000 will not be recognised.

Every federal state has its own foundation supervisory authority which continues to supervise foundations after they have been established ("making up" for the absence of shareholders (see Question 36)). Foundations have certain notification obligations and certain changes are subject to approval. Supervisory authorities also make sure that the two most important principles of German foundation law are upheld:

  • Firstly, funds endowed to the foundation cannot be spent (unless it is a principal-depleting foundation).

  • Secondly, all proceeds of the foundation's capital must generally be used to benefit the foundation's purpose.

This means that foundations must be run on the proceeds of their initial capital. For this reason, it currently makes little sense to set up a foundation with a capital of less than EUR500,000 (except for trust foundations and limited term foundations). In cases where there is less capital available, other forms of organisation can be more suitable (for example, a trust foundation, see Question 36). There is also the option to donate money to an already existing foundation for a specified purpose.

There is no federal register of foundations in Germany. However, regional registers are kept in most federal states, and registration of foundations in such registers is mandatory.

 
38. What are the benefits for individuals when setting up charitable organisations?

Setting up a charitable foundation or donating to the endowment of an existing foundation allows a donor to deduct up to EUR1 million (or up to EUR2 million with his spouse/legal partner) of money or goods given to enable the charitable body to pursue its purposes from his taxable income in the year of the donation and/or the following nine years, at the donor's choice.

Other donations to existing charities can be deducted from taxable income up to a maximum of 20% of the taxable income. This is effective for charities in the EU.

Charitable bodies are exempt from direct taxes as far as their charitable purposes are concerned. As a basic rule, they are liable to taxation if they run a business.

The donation to charitable organisations is exempt from inheritance tax (IHT)/gift tax if the receiving entity is entirely charitable.

Individuals who are not subject to taxation in Germany cannot profit from these benefits as these apply to German taxpayers only.

 

Ownership and familial relationships

Co-ownership

39. What are the laws regarding co-ownership and how do they impact on taxes, succession and estate administration?

German law differentiates between co-ownership by fractional shares and joint property. Regarding co-ownership, each co-owner owns a non-material, calculated fractional share in the property and may dispose of his own share. The whole property may only be disposed of by all co-owners. In the case of succession, the fractional share of the co-owner transfers to the heirs (or community of heirs). There are no particularities regarding taxes, succession or estate administration.

Joint property is not a form of co-ownership. Assets that are held in joint property (for example, assets of a partnership or of a community of heirs) are owned by all partners together. There is no fractional share. A partner may not dispose of his share in partnership assets, instead there are special procedures for winding-up or retirement against compensation. If succession is possible and, if so, how it is conducted, depends on the type of joint property (partnership or community of heirs) and specific statutory provisions or the articles of partnership. Especially in cases of succession in partnerships, it is essential for succession and tax reasons to co-ordinate the will and the articles.

Familial relationships

40. What matrimonial regimes in trust or succession law exist in your jurisdiction? Are the rights of cohabitees/civil partners in real estate or other assets protected by law?

There are three matrimonial regimes:

  • Community of accrued gains. This is the statutory matrimonial regime. Property is separated, but the spouses share the gains on the property (gains, in this context, means the amount by which the final assets of a spouse exceed the initial assets) between them equally, until the community of surplus is terminated (see Question 28).

  • Separation of property. The spouses agree, by matrimonial agreement, that the property of each spouse is completely separate.

  • Community of property. The spouses agree, by matrimonial agreement, that most of the property of each spouse becomes joint property. This matrimonial regime is relatively rare.

Matrimonial regimes are ended by divorce, death or change of matrimonial regime through a matrimonial agreement (notarisation required). Inheritance tax (IHT) and gift tax are not due on the payment of accrued gains in the case of a community of accrued gains (see Question 8).

With regard to the differences regarding the law of succession see Question 28.

The same property regimes apply to civil partners. However, there are no comparable property regimes for cohabitants.

 
41. Is there a form of recognised relationship for same-sex couples and how are they treated for tax and succession purposes?

Since 1 August 2001, same-sex couples can enter into a legally binding recognised relationship (civil partnership), which is subject to rules almost identical to German marriage law. For purposes of succession law, civil partners are treated in the same way as spouses (see Question 42).

Civil partners are treated in the same way as spouses for purposes of inheritance tax (IHT), gift tax and real estate transfer tax. For purposes of income tax, the law has changed so that the tax benefits available to spouses are also available to civil partners.

 
42. How are the following terms defined in law:
  • Married?

  • Divorced?

  • Adopted?

  • Legitimate?

  • Civil partnership?

Married

A non same-sex couple is married if the following conditions are satisfied:

  • They marry before a registrar (the declaration before the registrar that they wish to enter into the marriage must be made in person and both must be present at the same time).

  • The couple are both 18 years or older at the time of marriage. The family court can permit a minor above the age of 16 to marry a person of 18 years or older.

  • There is no bar to the marriage (for example, neither partner is already married or in a civil partnership with another person, no blood relationship).

  • The marriage has not been divorced or annulled.

The marriage is entered into for life. The spouses have a mutual duty of conjugal community; they are responsible for each other.

Divorced

Divorce is the dissolution of a marriage by decree on the petition of one or both spouses. A marriage is dissolved on the day the decree obtains legal force. A marriage may be dissolved by divorce if it has failed. The marriage has failed if the conjugal community of the spouses no longer exists and it cannot be expected that the spouses will restore it. Where the spouses have not yet lived apart for one year, the marriage may be dissolved by divorce only if the continuation of the marriage would be an unreasonable hardship for the petitioner for reasons lying in the person of the other spouse. It is irrebuttably presumed that the marriage has failed if the spouses have lived apart for either:

  • A year and both spouses petition for divorce or the respondent consents to divorce.

  • Three years.

There is no principle of fault.

Adopted

An adopted person is a person who has been legally accepted by another person or a couple as his or their child. Under German law there are different rules for the adoption of a minor and the adoption of an adult:

  • The adoption of a minor must be for his benefit. Generally, the adoptive parents, the natural parents and the child himself (if over 14 years of age) must agree to the adoption. As a general rule, the adoptive parent must have reached the age of 25 and the adoption should not be pronounced until the adoptive parent has had the child in foster care for a reasonable period. The court, on petition of the adoptive parents, decrees the adoption. The adopted child is then treated legally as a natural child of the adoptive parents and his rights in relation to his adoptive parents extend to the families of his adoptive parents. The adopted child ceases to be the child of his natural parents and loses his rights against them.

  • The adoption of an adult must be morally justified and, as a general rule, a parent-child relationship must already have been developed. Both the adopted adult and the adoptive parents must petition the court. The adopted adult is treated as related to the adoptive parents but not to their families. The adopted adult retains his rights in relation to his family of birth.

  • If a civil partner adopts a child on his own, the consent of the other civil partner is required. A joint adoption is not admissible. A civil partner may also adopt the child of his civil partner, regardless of whether the child is the partner's biological or adopted child (successive adoption).

Legitimate

A child is legitimate if it was born to married parents, if it was conceived during their marriage or if they entered into marriage with each other after its birth.

According to the German Constitution, children born out of wedlock are provided by legislation with the same opportunities for physical and mental development and for their position in society as those are enjoyed by children born in wedlock.

Therefore, in most cases, the distinction between legitimate and illegitimate children is of no practical relevance.

Civil partnership

A couple of same-sex partners can enter into a civil partnership if the following conditions are satisfied:

  • They declare their intention to enter into a civil partnership before a registrar (the declaration must be made in person and both must be present at the same time).

  • Both individuals are 18 years or older at the time of registration.

  • There is no bar to the civil partnership (for example, neither partner is already married or has entered into a civil partnership with another person).

  • The civil partnership has not been annulled.

See above, Adopted.

Minority

43. What rules apply during the period when an heir is a minor? Can a minor own assets and who can deal with those assets on the minor's behalf?

In Germany, children under 18 years are minors. Parents usually have joint custody of their child, unless the child was born out of wedlock and the parents have not taken the necessary steps to establish joint custody, in which case the mother holds sole custody. Parents with custody administer the minor's estate, including his inheritance. If the minor and the parents are heirs of the same testator, it may be necessary to appoint a curator to distribute the estate.

A testator can name in his will a person other than the minor's parents to administer the minor's inheritance. If the testator does not name a person, the court will nominate a curator.

A minor can own assets. Usually, it is the parents' duty to manage these assets on the minor's behalf. The following rules apply:

  • All contracts of substantial economic impact that are entered into by the parents on the minor's behalf and that establish an obligation of the minor (for example, sale or purchase of real property, sale or purchase of a business or of shares in a business entity and similar transactions) are subject to approval by the family court.

  • For specific transactions, particularly for contracts between the minor and his parents or other close relatives, the parents must not act on the minor's behalf. Instead, the family court appoints a curator to act on the minor's behalf.

 

Capacity and power of attorney

44. What procedures apply when a person loses capacity? Does your jurisdiction recognise powers of attorney (or their equivalent) made under the law of other jurisdictions?

When a person loses capacity, a custodian is appointed to represent that person in all legal matters, under supervision by a court. The applicable law is that of the nationality of the incapacitated person. However, a custodian under German law may also be appointed for a foreign national who has his habitual residence (gewöhnlicher Aufenthaltsort) or, in the absence thereof, his residence (Aufenthalt) in Germany.

Anyone who is capable can make wishes in writing with regard to custodianship, issue enduring powers of attorney and make living wills.

Germany is a signatory state of The Hague Convention on the International Protection of Adults of 13 January 2000. Under the Convention, the existence, extent, modification and extinction of powers of attorney granted by an adult to be exercised when that adult is not in a position to protect his interests, are governed by the law of the state of the adult's habitual residence at the time of granting the power of attorney. This is unless one of the following was expressly chosen in writing, the law of the state:

  • Of which the adult is a national.

  • Of a former habitual residence of the adult.

  • In which property of the adult is located, with respect to that property.

However, the manner of exercising these powers of attorney is governed by the law of the state in which they are exercised.

 

Proposals for reform

45. Are there any proposals to reform private client law in your jurisdiction?

There are currently no proposals for reforming private client law.

 

Online resources

German Federal Ministry of Justice (German)

W www.gesetze-im-internet.de

Description. Official website of the German Federal Ministry of Justice, which provides almost every German federal bill in the current version.

German Federal Ministry of Justice (English)

W www.gesetze-im-internet.de/Teilliste_translations.html

Description. Official website of the German Federal Ministry of Justice, which provides the most important German federal bills in English (for example, the German Civil Code (BGB) or the Fiscal Code (AO)). The translation is close to the original version but not binding.



Contributor profiles

Axel Wenzel, Partner

Oppenhoff & Partner Rechtsanwälte Steuerberater mbB

T +49 221 2091 455
F +49 221 2091 333
E axel.wenzel@oppenhoff.eu
W www.oppenhoff.eu

Professional qualifications. Germany, Attorney (Rechtsanwalt) since 2007

Areas of practice. Corporate and M&A; succession; wealth; foundations.

Non-professional qualifications. Doctorate in law (Dr. jur.), University of Cologne, University of Siegen; LLM (International Commercial and Business Law), University of East Anglia (Norwich, England)

Recent transactions

  • Advising a foundation regarding restructurings in its shareholdings (including a shareholding in a listed stock company).
  • Advising an ultra-high-net-worth individual, an heiress of a large aluminium, steel and synthetics enterprise.
  • Advising an ultra-high-net-worth individual on the contribution of a multi-billion fortune into a family foundation.
  • Advising a foundation on its majority shareholding in a large-scale mechanical engineering enterprise.
  • Advising a large family-owned company on a merger with a French state-owned company.
  • Advising a high net-worth individual with residences in Europe and the US on succession planning.
  • Advising family shareholders of a large family-owned company on transferring its shares into a family foundation.
  • Advising a high net-worth individual's heirs on their rights in relation to various family foundations.
  • Advising a high net-worth individual's family on the planning of his estate, including the avoidance of claims of statutory portions and assets located in the US.
  • Advising on the establishment of a foundation to fund medical research.
  • Advising Benckiser Stiftung Zukunft on innovative Social Impact Bonds.
  • Advising ultra-high net worth individuals on all aspects of mobility and succession planning.
  • Advising an ultra-high net-worth individual on transfer of assets to the next generation, wills, matrimonial agreements, set-up of a family-owned company.
  • Advising ultra-high net-worth individual on avoiding forced heirship regime.
  • Advising a community of heirs on questions regarding partitioning.
  • Advising on the extensive restructuring of a family-owned company.
  • Advising a foundation on investments.
  • Advising a family-owned company regarding succession in real estate.
  • Advising a foreign ultra-high net-worth individual on the acquisition of real estate from a German community of heirs.

Languages. German, English

Professional associations/memberships. Deutscher Anwaltverein e.V. (German Bar Association); Deutsch-Britische Juristenvereinigung e.V. (German British Jurists' Association); Wissenschaftliche Vereinigung für Unternehmens- und Gesellschaftsrecht (VGR) e.V. (scientific association for corporate law).

Publications

  • The continued applicability of the rules of jurisprudence to shareholders' loans in lieu of equity (publisher: Peter Krebs; publishing house: Lit-Verlag, Münster).
  • Capital funding of German private limited companies pursuant to the German Act to Modernise the Law Governing Private Limited Companies and to Combat Abuses (ZIP 2008, 1449 – 1455 and ZIP 2009, 1185 – 1196; with Dr Georg Maier-Reimer).
  • New Rules for the Remuneration of Board Members in Germany (International Corporate Governance 2009 (Digital Guide), www.executiveview.com).
  • Practical problems of the notification duties according to Sec. 21 German Stock Corporation Act (AG 2012, 274; with Michael Grimm).
  • Initiativbanking aktuell 4/2013: New provisions for foundations and associations (with Wolfram Vogel).
  • Initiativbanking aktuell 1/2013: Succession in business: the tax optimized way (with Wolfram Vogel).
  • Foundations (civil law and tax law overview, 2013) (with Wolfram Vogel).
  • Assessment/retroactive effect of hidden mixed contributions in kind – brief annotation to the judgement of the Federal Court of Justice dated 22 March 2010 (EWiR 2010, 421).
  • Kooperationen unter Beteiligung gemeinnütziger Körperschaften (Cooperations involving non-profit organisations) (in collaboration with Wolfram Vogel), KSzW 2014, 190.
  • Welche Stiftung passt zu mir? (What kind of foundation is the right one for me?), Unternehmeredition February 2016 (in collaboration with Matthias Bassüner).
  • Stirbt die Limited? (Is the Limited dying?), Markt und Mittelstand, 09/2016, S. 10.
  • Annotation of Federal Court of Justice judgement BGH II ZR 61/15 (Hidden contribution in kind of a shareholder's old receivable), EWiR 2016, 427.

Matthias Bassüner

Oppenhoff & Partner Rechtsanwälte Steuerberater mbB

T +49 221 2091 604
F +49 221 2091 333
E matthias.bassuener@oppenhoff.eu
W www.oppenhoff.eu

Professional qualifications. Germany, Attorney (Rechtsanwalt) since 2012; assistant tax consultant since 1998

Areas of practice. Tax law; succession; wealth; foundations

Recent transactions

  • Advising a foundation regarding restructurings in its shareholdings (including a shareholding in a listed stock company). Advising several managers of multi-national corporations on aspects of German tax law.
  • Advising a high net-worth individual with residences in Europe and the US on succession planning.
  • Advising on the establishment of a foundation to fund medical research.
  • Advising Benckiser Stiftung Zukunft on innovative Social Impact Bonds.
  • Advising a family-owned company regarding succession in real estate.

Publications

  • Ende der Hängepartie in Sicht: Kompromiss zur Erbschaftsteuer liegt vor (Tie-break in sight: Compromise on inheritance tax is on the table), Markt und Mittelstand.
  • Welche Stiftung passt zu mir? (What kind of foundation is the right one for me?), Unternehmeredition February 2016 (in collaboration with Dr Axel Wenzel).
  • Generationenwechsel wird erschwert (Transfer to the next generation is being hindered), Lebensmittel-Zeitung, 12/2015, S. 32.

Languages. German, English

Professional associations/memberships. Rechtsanwaltskammer Köln (Cologne Bar); Deutscher Anwaltverein e.V. (German Bar Association); Deutsche Steuerjuristische Gesellschaft e.V. (scientific association for tax law); Arbeitsgemeinschaft der Fachanwälte für Steuerrecht e.V. (association of certified tax expert lawyers); Institut der Steuerberater in Hessen e.V. (Association of Hessian Tax Counsultants) (Deutsch-Britische Juristenvereinigung e.V. (German British Jurists' Association); Wissenschaftliche Vereinigung für Unternehmens- und Gesellschaftsrecht (VGR) e.V. (scientific association for corporate law).

Publications. Transfer to the next generation becomes harder (LZ 12/2015, 32).


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