New findings on the notariel estate inventory

A great deal has been decided, written and discussed about the notarial estate inventory (or register of estates) in recent years. For notaries it has become a duty – sometimes an arduous one – to make sure that they make their own investigations and not merely to include in a notarial deed details of the person obliged to provide information to the heirs. However, this was provided for by the legislature anyway.

Now there has already been the view in court decisions that a notarial list of estates (an estate inventory drawn by the Civil Law Notary) must be drawn up within a period of two months. However, the Brandenburg Chamber of Notaries has announced on the occasion of an enquiry under January, 8.2020.

“The fact that there are approximately six months between the start (commissioning) and completion of a notarial list of estates is, in our estimation, not conspicuous because of the investigative activities required. The notary can only influence the processing times for the list of estates to a limited extent, as experience has shown that it can take a considerable amount of time to reply to institutions such as banks that are to be contacted. Therefore, we cannot see any misconduct in office relevant to professional supervision in the notary’s announcement that the list of estates will be completed within a period of six months”.

The persons entitled to information will therefore have to prepare themselves for the fact that although notaries will continue to be – as they have been up to now – willing to give and do their best to draw up notarial inventories of estates, a short-term position is generally not mandatory. Of course, this does not mean that notaries now regularly take six months to draw up such lists, especially as it is quite possible that nine months may be necessary to draw up a possibly extensive inventory.

In most cases, however, it is possible to take up a much shorter period of time, depending of course on the extent of the estate, its content and how the heir cooperates in the investigation and establishment.

It is also up to the notary to decide whether or not the last ten years as a whole are actually checked by him with regard to possible account outflows. Only if there are special indications that this is appropriate, and to check, at good luck, any account that the testator has had in the last ten years for outflows relevant to the compulsory portion, cannot be the notary’s task. There must already be certain preconditions and suspicious facts for this, so that the person entitled to the compulsory portion must of course raise such suspicious facts. On the other hand, the heir must ensure that these statements of account are obtained, i.e. that he also pays the costs from the estate, for example.

It is also noteworthy that the Federal Constitutional Court, in a decision of 25 April 2016, 1 BvR 2423/14, found that in individual cases with regard to possible gifts, the inspection of complete account statements and other bank documents for “the ten-year period” was obvious.

In conclusion, the notary determines the procedure for drawing up the notarial list of estates, but the ultimate responsibility still lies with the heir, who cannot simply transfer it to the notary, but if there are obvious reasons, the complete bank statements of the last ten years must be inspected and this must also be stated in the deed. However, if there are no obvious reasons, this cannot be requested schematically.