necessary measures for proper estate administration
February 14, 2010 | 30,00 EUR | answered by Bernhard Müller
You had already informed me on 01.12.09 that, if "measures for the proper administration of the estate are necessary, each co-heir is obliged to participate in the administration (§ 2038 sentence 2 BGB)".
Question 1.):
What exactly does this obligation entail? - Does participation in the application for the certificate of inheritance count?
The 3x 1/4 heirs have already filed the application for the certificate of inheritance in October 2009. The remaining 4x 1/16 heirs were immediately contacted by the probate court and have already been asked twice to submit their missing birth certificates.
We need the certificate of inheritance not only for the banks, but also for the court-appointed guardian of the deceased, who still holds mail and documents. We don't even know if there might be outstanding bills/reminders in the held mail...
The remaining heirs initially demand the account details and balances, which we co-heirs do not know. To find this out, we need to have the certificate of inheritance, which we cannot obtain due to the refusal of the 4x 1/16 heirs. So, we are going in circles and don't really know what to do next.
Question 2.):
What options do we have to enforce the above-mentioned claim - especially the participation in the application for the certificate of inheritance - against the uncooperative co-heirs???
Thank you.
Dear inquirer,
Proper administration includes all measures that are in the interest of all co-heirs according to reasonable economic standards and do not bring about any substantial changes to the estate. (Palandt paragraph 8 to § 2038 BGB)
Therefore, participation in the application for a certificate of inheritance is also part of it if the certificate cannot be obtained in any other way, meaning that certificates are required that only the co-heirs have access to.
If the inheritance of the heirs willing to cooperate has already been proven, each of the willing heirs can also apply for a partial certificate of inheritance for their share in case the joint certificate of inheritance according to § 2357 BGB cannot be issued due to the lack of participation of individual heirs. Applications for the issuance of partial certificates of inheritance should be made as auxiliary applications.
The necessary participation can be enforced by legal action. (BGH 6,76) The lawsuit is to be directed towards obtaining approval for a measure of proper administration.
This means that the heirs willing to cooperate can sue the unwilling heirs to submit the necessary descent certificates if the problem cannot be resolved through the alternative application for partial certificates of inheritance.
Once a final judgment is obtained, it can be enforced through fines of up to 25,000 euros under § 888 ZPO. In case the fine cannot be collected, substitute detention is also possible.
I hope that my response was able to help you.
Best regards,
Bernhard Müller Attorney at Law
