Skip to main content
Holger Siegwart

Holger Siegwart’s Answers

3 total

  • Can my husband held reliable for the funeral cost of his mother?

    my husband is a german citizen and resides with me in texas. he has been told that he has to appear in court within six month in germany to sign a paper staten that he is by no means finacially fit to pay any funeral costs and that he does not wan...

    Holger’s Answer

    I am licensed to practice law in Germany. Under German heirs are liable for funeral costs pursuant to Section1968 BGB (German Civil Code). Decedent's children are heirs by default (intestate succession) unless provisions in decedent's last will disinherit them explicitly, or implicitly by leaving everything to other persons.

    It is important to understand that you can inherit and become personally liable for decedent's debts under German law. In order to avoid this result you must disclaim the inheritance. Since your husband resides outside Germany the disclaimer must be filed with the German probate court within six months from the date your husband found out that he became an heir.

    It is not necessary to personally appear in court in Germany for that purpose. The disclaimer can be executed at the German consulate. But it is the heir's (your husband's) responsibility to make sure that the German probate court receives the disclaimer within six months. If your husband has minor children he (and their mother in case of joint custody) must disclaim the inheritance, and timely file the disclaimer, on behalf of the minor children as well.

    Before filing a disclaimer heirs should verify that the estate is, in fact, indebted as they would disclaim not only the debts but potentially valuable assets as well. It is not uncommon that relatives try to scare co-heirs who reside abroad into disclaiming an inheritance before they can find out its true value.

    If an heir fails to file the disclaimer with the probate court within six months the inheritance, including decedent's debts, is deemed accepted.

    Please note that close relatives can also be held liable for unpaid funeral costs under public health and safety laws, even if they have not become heirs, unless they can show lack of financial resources.

    See question 
  • What is "Convention Abolishing the Requirement of Legalization for Foreign Documents"?

    Actually, is it different from "Convention Abolishing the Requirement of Legalization for Foreign Public Documents"? I ask because California Superior Court Local Rule 14.32 references the former, but all I can find is information on the latter.

    Holger’s Answer

    San Francisco Superior Court Local Rule 14.32 ("Proving Foreign Wills") makes reference to the Hague Convention of October 5, 1961 Abolishing the Requirement of Legalization for Foreign Public Documents. The full text of the Hague Convention can be found here http://www.hcch.net/upload/conventions/txt12en.pdf

    Under Local Rule 14.32 a petition to probate a foreign will must have attached to it a certified copy of the will and the order or decree admitting it to probate outside of this jurisdiction.
    If you intend to submit a foreign will with a petition for probate pursuant to this rule, (1) the foreign copy certification and (2) the foreign order or decree admitting the will to probate abroad would be the “foreign public records” to be authenticated. The will itself is usually not a public document unless it is a “notarial” will, which is not uncommon in certain foreign jurisdictions.

    The purpose of the Hague Convention was to abolish the time-consuming and burdensome process known as the chain-certificate method of document certification. Instead, the Convention provides that the only formality that may be required in order to certify the authenticity of the signature, the capacity in which the person signing the document (e.g. the copy certification and the order admitting the will) has acted, and the identity of the seal or stamp which it bears, is the addition of the Apostille issued by the competent authority of the country from which the document emanates. The Convention creates a standardized form of a certificate of endorsement (the so called Apostille).

    Being a treaty signed under the authority of the United States the convention is the supreme law of the land which supersedes conflicting state law provisions. In other words, if the country issuing the copy certification, and the order admitting the will to probate in that country, is a member country to the Hague Convention, then the probate court in the U.S. must accept a duly issued Apostille and must note require additional formalities such as a certificate of genuineness or chain-certificate.

    International practitioners are familiar with the Hague Convention and, if done properly, the Apostille process is straightforward. Please note that additional provisions re: translations, holographic (entirely handwritten) wills, and the validity of the will under foreign law etc. may be applicable depending on the circumstances of your case.

    See question 
  • I own my own business and sold merchandise to a small company in Germany. They did not pay!

    I have all the receipts and can prove that he ordered, received and has not paid the merchandise. He owes me several thousand dollar. Can I as a company in the US sue that company in Germany? Can I sue him here in the US? And what happens after th...

    Holger’s Answer

    As a U.S. based company you can sue the debtor company in Germany. Since the amount in dispute appears to be moderate filing suit in Germany may be the most cost-efficient option. In order to make that determination counsel should be familiar with the legal systems in both the U.S. and Germany

    Other commentators already pointed out that filing suit in the U.S. against the German company, properly serving the the opposing party in Germany, obtaining a judgment in the U.S., and then domesticating the judgment in Germany is a lengthy and expensive process. I have to add that recognizing the judgment in Germany requires you to file suit in Germany anyway (Section 722 et seq. of the German Code of Civil Procedure, ZPO).

    On the other hand, suing for a moderate amount of money directly in German courts is likely to be cheaper. The cost of litigation in Germany depends on the amount in dispute. Attorney fees in Germany are set by law, some exceptions apply (Rechtsanwaltsvergütungsgesetz, RVG). True contingency fees are still outlawed in Germany and hourly fee agreements are unusual for this type of matter. Under the RVG attorney fees increase with the value of the case, i.e. the higher the amount in dispute, the higher the fees. The same principle applies to court filing fees.

    Moreover, the German Code of Civil Procedure has a "loser pays" provision, i.e. the debtor has to pay your reasonable attorney fees and costs if you win (Sec. 91 ZPO).

    This is why filing suit in Germany may be a less burdensome and expensive option in this matter. Once you obtain a judgment in Germany, there will be mechanisms to enforce it.

    Before filing suit you should check the applicable statute of limitations to make sure your claim is not and will not be time barred in Germany. Unfortunately, your question does not provide enough details to determine when the German statute of limitations will expire in your case.

    See question