Moreover, the term "elder abuse" encompasses far more than just physical violence. While physical abuse is certainly a horrific reality, it's vital to recognize that the elderly can be victimized in numerous ways. Emotional manipulation, neglect, and financial exploitation are also forms of abuse that can have devastating consequences for victims.

Why Elder Abuse Goes Unreported

Elder abuse often remains hidden, shrouded in silence and shame. The reasons why victims hesitate to come forward are complex and heartbreaking. Many elderly individuals feel a profound sense of shame about being mistreated. They may blame themselves, believe they are somehow deserving of the abuse, or fear the judgment of others. This internalized shame can prevent them from seeking help or even acknowledging the abuse to themselves.

Power imbalances also play a significant role in the underreporting of elder abuse. In many cases, the abuser is someone the victim knows and depends on for care and support, such as a family member or caregiver. This creates a chilling power dynamic where victims may fear retaliation, further isolation, or even being forced into a nursing home if they speak out.

Recognizing the signs of elder abuse is the first step towards breaking this silence. Sudden changes in a senior's behaviour, unexplained injuries, a noticeable decline in hygiene, or unusual financial activity can all be red flags. If you notice any of these signs in a loved one or neighbour, it's important to approach the situation with compassion and encourage them to seek help. Remember, it's never too late to intervene and protect a vulnerable elder from further harm.

Types of Elder Abuse

Elder abuse isn't always as obvious as black eyes and bruises. It can manifest in many insidious ways, some of which are often overlooked or dismissed. Physical abuse, while perhaps the most visible form, encompasses more than just hitting or slapping. It can include the improper use of physical restraints, pushing or shoving, rough handling during caregiving tasks, or even the deliberate overmedication of a senior to keep them docile and quiet.

Emotional abuse can be just as damaging, though often harder to detect. Verbal insults, threats, humiliation, or intimidation can all create a toxic environment that leaves deep emotional scars. Isolation, another form of emotional abuse, involves preventing a senior from interacting with friends or family, leaving them vulnerable and lonely.

Financial exploitation is a particularly insidious form of elder abuse, as it often occurs gradually and involves the violation of trust. Sadly, seniors are frequent targets of scams promising riches or claiming to be from government agencies. In other cases, family members or trusted individuals may siphon off money through forged checks, manipulating the elder into changing their will, or outright theft. An elder abuse attorney Bay Area can be crucial in these situations, helping to unravel the financial web and pursue legal action against those responsible.

Neglect is a more passive form of abuse, but no less harmful. It can occur when a caregiver, often an overwhelmed family member, fails to provide adequate food, water, medication, or basic hygiene. This can lead to malnutrition, dehydration, worsening medical conditions, and even death. While neglect isn't always intentional, it's essential to recognize the signs and ensure that vulnerable elders receive the care they need.

When to Seek Legal Help

Discovering that a loved one is a victim of elder abuse is a heart-wrenching experience. While the immediate response might be to call the police, it's important to understand that the legal options extend beyond just filing a criminal report. While pressing charges may be appropriate in certain situations, the involvement of a Bay Area injury attorney can take on a different, but equally vital, role.

Proving elder abuse can be a complex endeavour, especially when the victim is hesitant or unable to testify against their abuser. This is where the expertise of an experienced attorney is essential. They can gather evidence, interview witnesses, analyze medical records, and piece together a comprehensive picture of the situation. In some cases, the abuse may have caused physical harm, leading to medical bills and the need for ongoing care. An attorney can pursue compensation for injuries to help alleviate the financial burden on the victim and their family.

Beyond financial compensation, an attorney can also seek legal remedies that protect the victim from further harm. This could involve obtaining restraining orders against the abuser, establishing guardianship arrangements, or helping the victim regain control of their finances if they've been exploited. Remember, the goal of seeking legal help isn't solely about punishment, but also about protecting the vulnerable and ensuring their safety and well-being.

Choosing the Right Law Firm

When it comes to elder abuse, the choice of legal representation is crucial. Elder abuse encompasses a wide spectrum of complex legal issues that require specific knowledge and expertise. An attorney who primarily focuses on divorce or other areas of law may not be well-versed in the nuances of elder abuse cases. These cases often involve understanding complex financial transactions, recognizing subtle signs of emotional manipulation, and navigating the sensitive dynamics between family members.

Seek out a law firm that has a dedicated practice area focused on elder abuse, like SKG Law Firm. Their attorneys should possess a deep understanding of relevant state and federal laws protecting seniors, as well as the specific resources available in your area for victims and their families.

Perhaps most importantly, choose an attorney who demonstrates compassion and understanding towards elder abuse victims. These cases can be incredibly emotional and difficult to talk about. Having an advocate who approaches the situation with sensitivity and respect can make a world of difference in the healing process.

Conclusion

Elder abuse thrives in silence and isolation. Breaking the silence is the first step towards protecting vulnerable seniors and ensuring they receive the care and respect they deserve. If you suspect that an elder is being abused, neglected, or financially exploited, it's imperative to report it. This is particularly crucial in cases of "nursing home abuse," where residents are often isolated and reliant on their caregivers.

Don't underestimate the impact of your voice. By reporting your concerns to the appropriate authorities or reaching out to organizations like the National Center on Elder Abuse (NCEA) (https://ncea.acl.gov/), you can potentially save a life or prevent further harm. Remember, seeking legal counsel can also be a powerful tool for protecting vulnerable seniors. If you're unsure of your options or need help navigating the legal process, don't hesitate to reach out to a qualified attorney or your local legal aid service for assistance. Your vigilance and action could make all the difference in the life of an elder.

We are specialized lawyers for family law and partners of the law firm Pilati + Fritz Rechtsanwälte.  

For many years, we have passionately defended the rights and interests of our clients, particularly in complex and often emotionally stressful matters involving family law. 

With our extensive experience and dedicated team, we support our clients in overcoming family-related challenges and accompany them on their way to a changed future.  

There is hardly any other legal area in which critical issues clash with deep emotions as intensively as in family and inheritance law. In addition to providing our clients with strong legal assistance, we consider it to be our duty to offer tailored advice and to understand their individual needs. In every case, we endeavor to deliver the best possible solution. Divorce proceedings can take a long time and be very painful and costly. Therefore, an amicable settlement is advisable. Very often, such a settlement can be reached.  

What is your professional background and education? 

We both hold a law degree and have completed numerous training courses in family law. Through our many years of practice and specialization in this field of law, we have gained a strong foothold in Germany and abroad. Our law firm attaches great importance to ongoing further training and interdisciplinary cooperation. 

Kristina comes from a family of lawyers. Her father, Dr. Albert Paul, was a well-known and respected lawyer and notary in Frankfurt am Main. 

Kristina has worked as a notary for many years and also holds a degree in humanistic psychology. 

I (Alma) have been with the firm for 16 years, including 10 years as a lawyer, four years as a partner and now as a managing partner. I will continue the law firm and its tradition. Under the long-standing mentorship of Kristina, I was well-prepared to take over the law firm. In our law firm, I take care of family cases with a foreign element, in which child custody matters are in the foreground.  

From the very beginning, we have served major clients throughout Germany, working at a high level. We complement each other perfectly. Kristina has benefited from my experience, which I gained as a research assistant at the University of Frankfurt am Main at the chair of Prof. Dr. Guido Pfeifer. Thus, she has been able to leverage scientific, systematic work and current case law in the law firm. From the outset, we have complemented each other, operating on the same wavelength, and have secured an orderly succession. 

We have access to a large network and can, therefore, help our clients in all situations.  

What type of services do you provide?  

Our law firm provides comprehensive legal advice and representation in all areas of family law, including the following: 

• Divorces and separations
• Custody and alimony disputes
• Marriage contracts and asset protection
• International family law issues
• Estate planning and inheritance law

Why did you decide to specialize in family law? 

Family law matters can be stressful for those involved and require particular sensitivity and expertise. We have chosen this area of law in order to assist our clients in difficult times and exceptional situations and to support them in resolving their family conflicts. The opportunity to help people and give them a perspective for the future motivates us in our daily work.  

How does child custody work in Germany? 

This is a very complex topic. In Germany—unlike in many other legal systems—distinction is made between custody and contact and access rights. Custody and, contact and access rights are independent of each other. Thus, a parent who does not have custody still has a right to contact with the child. 

Under normal circumstances, custody is jointly exercised by both parents. As far as the establishment of parental custody is concerned, distinction is made as to whether or not the parents are married to each other at the time of the child’s birth. 

If the parents are married at the time of birth, they are entitled to joint parental custody.  

If the parents are not married at the time of the child’s birth, they are entitled to joint parental custody 

1. if they declare that they wish to assume joint custody and make declarations of custody,
2. if they marry each other or
3. if the family court grants them joint parental custody.

If joint parental custody is on hand, both parents have equal rights and make joint decisions for the benefit of their children. 

In the event of separation and divorce of the parents, joint parental custody generally remains in place. If the parents live separately, both parents jointly exercise parental custody, though the parent with whom the children usually reside has sole decision-making authority in matters of daily life. Everyday care includes all matters that arise in daily life, e.g. school life including participation in day trips, picking up the child from daycare or school, and so on. In matters of considerable importance for the children, such as determining their place of residence, school enrollment, enrollment and deregistration from kindergarten etc., the parents must make a joint decision. If they are unable to do so, the family court may, upon application, transfer the decision-making authority regarding the matter on which they are unable to agree to one of the parents. 

Parental custody may be withdrawn from one parent by the court and transferred to the other parent for sole exercise if there is no minimum level of cooperation and communication between the parents and the continuation of joint parental custody poses a risk to the child’s welfare.  

Can I move abroad with my child when the other parent has joint custody in Germany? 

If both parents have joint custody, moving abroad with a child requires the consent of the other parent. Without this consent, such a move could constitute child abduction. In such cases, a court decision to transfer the right to determine the place of residence may be necessary, as the transfer of residence is a matter of considerable importance for the child. If the parents disagree about the child moving abroad, it will often be necessary to transfer other areas of parental custody in addition to the right to determine the child’s place of residence, e.g. in school matters if the child is a student and needs to be enrolled in school abroad.  

International family law issues can include cross-border divorces, child abduction and custody disputes. What are the main challenges and complexities regarding international family law issues? 

It depends on the individual case. In international family law, the greatest challenges lie in the different legal regulations and legal systems of the countries involved. The recognition and enforcement of court rulings and the coordination between different national authorities are especially complex.  

International child abduction and child return proceedings, in particular, pose special challenges for all parties involved. As the situation can be unbearable for the parents concerned, it is all the more important to proceed strategically and carefully evaluate any steps to be taken. 

International family law is becoming increasingly relevant since families no longer all live in the same place or in the same country. 

Our law firm has extensive experience in cross-border legal matters and works closely with colleagues and experts around the globe.  

What is the divorce process in Germany and what happens to our finances on divorce? 

Divorce proceedings begin with the filing of the application for divorce with the court. A divorce may be pronounced after one year of separation. If the spouses did not conclude any prenuptial and postnuptial agreement, the statutory provisions apply.  

The statutory matrimonial property regime is the community of accrued gains. Under the community of accrued gains regime, each spouse retains ownership and management of his or her own assets and also benefits from them. There is no legal liability for the debts of the spouse. There are no joint assets. Instead, the spouse with the smaller gain receives an equalization payment from the other spouse. The respective gain is determined on the basis of a strict cut-off date principle, i.e. information must, on request, be provided about the assets on the date of the marriage and on the date of service of the application for divorce. This information must be substantiated with supporting documents. In addition, information may be requested about the assets at the time of separation. This information must also be substantiated with supporting documents. The spouse who has made the higher gain must pay the other spouse half of the difference between the respective gains as compensation. Inheritances or gifts made by one spouse during the marriage are added to the initial assets so that the other spouse does not participate in the increase in assets resulting from such gifts. On the other hand, any increase in value is subject to equalization. 

The spouses are subject to restrictions on the disposal of the assets as a whole and of household items. In order to counteract arbitrary reductions in assets and thus a reduction in the equalization claim, certain disadvantageous measures are either withdrawn purely by calculation, or the disadvantaged spouse may demand that the third party return what has been granted. 

If the spouses are unable to reach an out-of-court settlement, they can include subsequent proceedings in the divorce settlement (so-called combined application), e.g. post-marital alimony or equalization of gains.  

A combined application means that certain matters that are decided in connection with a divorce must actually be decided in conjunction with the divorce. The purpose of the divorce settlement is to clarify the consequences of a divorce even before it is pronounced.  

In a combined application, a matter is only decided on together with the divorce if the parties involved request this. 

Distinction must be made between this and the compulsory connection that exists between divorce and pension equalization. This means that as soon as an application for divorce is filed, the family court automatically conducts pension equalization proceedings, equalizing the entitlements acquired by the spouses during the marriage. 

From a financial point of view, a spouse may also be entitled to separation alimony for the period up to the divorce and post-marital alimony for the period after the divorce.   

What are prenuptial and postnuptial agreements in Germany, how do they work, and can they be treated as binding contracts in all jurisdictions? 

Marriage contracts can regulate property issues, alimony, and pension provisions and may be concluded both before and after the marriage. They need to be notarized in order to be legally effective. Marriage contracts may also govern the consequences of divorce, such as equalization of gains, alimony, pension equalization, allocation of the marital home or division of household items, etc. In this case, they are referred to as “agreements on the consequences of divorce”. 

The recognition of marriage contracts in other legal systems depends on the respective national laws.  

It is advisable to regularly review and adapt marriage contracts, as marital life can change over time.  

What does an amicable divorce mean and what is the role of the lawyer in achieving an amicable divorce? 

An amicable divorce means that both spouses want to get divorced and agree on the main consequences of the divorce. A lawyer files an application for divorce on behalf one of the spouses. The other spouse does not need their own lawyer, but can agree to the other spouse’s application for divorce.

The divorce becomes final once the one-month period for lodging an appeal has expired. If both spouses are represented by a lawyer, a waiver of appeal can be declared at the divorce hearing, so that the divorce decree becomes legally binding right after the judge has pronounced the divorce decree, i.e. immediately. Thus, the marriage is finally dissolved on the same day.  

How is an estate dealt with if there are assets inside and outside of Germany? 

In the case of an estate with assets in Germany and abroad, both national and international regulations must be observed. This may require cooperation with foreign authorities and lawyers. It is important to consider all relevant inheritance and tax regulations in order to ensure a settlement that is both lawful and efficient.  

Probate matters can be emotionally charged and challenging to resolve. What are the main issues clients face and how are these resolved? 

The main problems are often family conflicts that may also arise from patchwork families, especially if there are several ex-wives, uncertainties about the legal situation, and tax issues. These problems can be solved through clear communication, timely arrangements, i.e. arrangements made during the lifetime of the respective person, comprehensive legal advice, and mediation.  

In the case of divorced entrepreneurs with underage children, it is advisable to have a divorce will. 

Sometimes, overcoming the obstacle of entering a mediation process is a greater hurdle than actually reaching an agreement.  

What are the challenges and issues regarding German property disputes on the breakdown of a marriage or relationship, and how are these resolved? 

Challenges can include valuations of complex business structures in the context of gain equalization, which can be resolved through expert advice and thorough financial analysis, negotiations and, if necessary, court decisions.   

Family mediation is a popular Alternative Dispute Resolution (ADR) method to settle disputes between ex-spouses and separated parents. What impact has mediation and other ADR methods had on German divorce cases? 

Mediation can considerably shorten court proceedings and reduce emotional stress. It can promote an amicable agreement and avoid lengthy court proceedings and offers the parties a chance to talk in a protected environment. A mediator helps the parties to take responsibility, learn how to deal with the conflict, and come to a mutual agreement. 

Subject to the parties’ agreement, mediation can take place before or during court proceedings. In family law proceedings, mediation is often conducted in court by judges who do not have jurisdiction in the case itself. Out-of-court mediation can even take place while the court proceedings continue.  

Have there been any recent significant changes in German family law? 

Yes. In recent years, there have been some significant changes in German family law, particularly with regard to custody, strengthened rights of unmarried fathers and same-sex marriage, especially since the introduction of “marriage for all” in October 2017. 

In January 2024, the Federal Ministry of Justice presented key points for a reform of parentage and filiation law. Besides the conventional marriage and family model consisting of father, mother, and children, new forms of cohabitation have emerged and might need to be taken into consideration.  

What skills and qualities do you need to become a good family lawyer? 

A good family law lawyer needs excellent legal knowledge, empathy, communication skills, and negotiation skills. Moreover, passion, trust, integrity, confidentiality, and a sense of responsibility are essential. 

Pilati + Fritz Rechtsanwälte 

Friedensstr. 11 . 60311 Frankfurt am Main  

Tel: +49 69 2695853-0  |  Fax: +49 69 2695853-65   |  Email: fritz@pilati-fritz.de 

www.pilati-fritz.de 

Published by: www.lawyer-monthly.com - June 4th, 2024

What is a cross-border estate? 

The characteristic of a cross-border estate is that either the claimants and assets are located in different countries, or that a decedent leaves assets in another country. Cross-border estates include individuals of German descent residing in the United States who claim a share of the estate of a deceased relative in Germany as well as German immigrants in the United States leaving assets in their home country.   

What succession laws apply in a cross-border estate? 

The applicable law must be determined separately for each jurisdiction in which a decedent leaves assets since each jurisdiction has its own conflict of law rules. Germany follows the so-called EU Succession Regulation of 2012 for all deaths occurring after August 16, 2015. Under the Regulation, the law of the State in which the decedent had his habitual residence shall apply unless he was manifestly more closely connected to another State. The Regulation also allows for a choice of the law of a State whose nationality a testator possesses. 

German probate courts will usually apply German law to the entire German estate if a German resident leaves assets to heirs in the United States.  

If a decedent domiciled in the U.S. leaves assets in Germany, the German probate court will apply the conflict of laws rules of the home state of the decedent in the United States. Conflict of laws rules under state laws in the U.S. typically provide that the law of the decedent’s domicile shall apply to movable property, whereas the lex rei sitae shall apply to real property. As a result, German probate courts typically have to apply the law of a U.S. jurisdiction with regard to a decedent’s movable property, whereas succession to real property will follow German in this situation. Even if the substantive law of a foreign jurisdiction applies to succession in interest, the German court will always apply German rules of civil and probate procedure.  

What are the most common issues regarding the settlement of estates in Germany for US-based heirs or claimants? 

Inheritance and succession laws in Germany are notably different from their counterparts in the United States, and so are the rules governing the settlement of estates in Germany. US-based claimants and their local attorneys are often unaware of the issues and risks this creates. 

Under German law heirs become owners of all assets and debtors of all obligations at the time of death (Universalsukzession). In most cases there is no personal representative securing and liquidating assets and paying the decedent’s debt. The heirs, who can only act jointly, personally have the respective authority and responsibility. This requires US based heirs to cooperate with heirs in Germany. Failure to cooperate can expose them to liability, and uninformed cooperation frequently results in foreign heirs receiving less than their fair share. 

Since heirs become debtors of the decedent’s obligations at the time of death they may inherit debt in Germany, for which they will become personally liable with their own assets.

A six-month deadline applies to heirs outside Germany who wish to disclaim the inheritance (Erbausschlagung) and avoid this consequence. At the same time, heirs in Germany and their representatives may attempt to scare U.S. based heirs without detailed knowledge of the estate into disclaiming a valuable inheritance suggesting that they will inherit debt. Therefore, it is critical for U.S. based heirs and attorneys to investigate an estate in Germany promptly in order to make an informed decision regarding the acceptance or disclaimer of an inheritance. 

The nomination of an executor (Testamentsvollstrecker) in a will, with authority to settle the estate, is the exception, not the rule in Germany. 

Even if there is an executor the settlement of the estate is not court supervised as we know it from probate proceedings in the United States. Unless a will provides for an executor no personal representative will be appointed. It is, therefore, critical for U.S.-based heirs and their attorneys to play a more active role controlling and holding the executor accountable. 

Spouses and descendants (and parents in the absence of descendants) can be disinherited entirely only under rare circumstances. Under German law, disinherited spouses and descendants can usually claim a forced share (Pflichtteil) against the heirs for payment of one-half of the value of their intestate share. E.g. if a disowned child would receive a 1/3 share but for a disowning provision in a will, she can still claim payment of 1/6 of the value of the estate. The value of gifts made by the decedent in the last ten years before the passing will be added to the date of death value of the estate for purposes of calculating the forced share. Forced share claimants are entitled to receive an inventory of the estate, which must include gifts made by the decedent and an appraisal of assets without a face value.  

Forced share claims to compel an inventory and appraisal, and payment of the resulting amount, are frequently the subject of estate litigation in Germany. 

The legal concept of trusts is not known to German law, which does not allow legal ownership on the one hand and beneficial ownership on the other hand to be separated. Consequently, assets in Germany cannot be trust assets, and a trustee cannot be recorded as the owner of real property in Germany.  

This creates significant problems when a U.S. based decedent with a traditional estate plan leaves assets in Germany. Pour-over-wills usually provide that the residue of the (probate) estate shall go to the trustee in order to administered and distributed according to the terms of the trust. Moreover, trust agreements between spouses often do not contain specific language that would allow for qualification of the surviving spouse as an heir, or the sole, heir under German standards.  

It is not uncommon that estate plans drafted by practitioners in the United States fail to address assets and heirs in Germany with these differences in mind. As a result, the settlement of the estate will be significantly delayed and the heirs will incur additional legal fees in order to process the incompatible U.S. estate plan through the German court system.   

How are cross-border estates taxed? 

Germany levies an inheritance tax which provides for different exemptions and tax brackets depending on the degree of kinship. Each recipient is taxed individually. Spouses, lineal descendants, and parents are in the most favourable tax class 1 with exemptions of up to 500,000 Euros and tax rates between 7% and 30%. Siblings, nieces, and nephews are in class 2 with an exemption of 20,000 Euros and tax rates from 15% to 43%. All other recipients are in tax class 3 with an exemption of 20,000 and tax rates between 30% and 50%. Estate plans drafted in the U.S. are typically ignorant of German inheritance tax consequences which can create unintended tax consequences, and a significant risk of malpractice for the drafter. 

If both the decedent and the recipient are non-residents and non-citizens of Germany, or citizens without residence for a number of years, the inheritance tax applies only to German situs property such as real property and business interests. 

If the decedent is a citizen or permanent resident of the U.S. the value of the German estate will be part of the worldwide estate subject to U.S. estate tax. The provisions of the double taxation agreement between the United States and Germany apply.   

Even if the value of the overall estate does not exceed the federal estate tax exclusion amount (and also if it does and the decedent is not a citizen or permanent resident of the United States) an interest in an estate in 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. 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 foreign law slows down proceedings significantly. Parties and counsel being in different countries and time zones, unable to appear on short notice (remote appearance are generally not available for this type of proceedings at this time) causes additional delays. 

German civil procedure and probate procedure do not provide for discovery as we know it in the United States.

This means that opposing parties do not have to respond under oath to interrogatories or requests for admission and production of documents, nor can the parties subpoena records. There are no depositions under oath outside the courtroom.

Witnesses and parties testify in the courtroom as the case proceeds questioned by the judge and counsel. The testimony is not always given under oath nor is it recorded verbatim. Witness testimony in civil and probate proceedings in Germany is not as thorough and detailed as a deposition in the United States. 

These factors have a major impact on the evidentiary strategy in a disputed case, as a case that is winnable in the U.S. may not be winnable in Germany and vice versa. It is critical for parties and counsel to understand and evaluate the effect of these factors on the outcome of a case at an early stage.  

The business of winding up an estate can be challenging for all concerned. This is the case for most estates, but it can be particularly so for those estates that include an international or cross-border element. What are the key issues to be kept in mind when dealing with cross-border estates between Germany and the USA? 

Both substantive law and procedure are systemically different in both countries. It is important for claimants to be proactive as soon as they become aware that they may have a case, particularly if hostile parties have taken possession of the estate or relevant evidence. This is also to determine whether an estate is indebted and the inheritance should be disclaimed. In disputed cases, U.S.-based claimants should demonstrate from the outset that they are able and willing to litigate the matter in Germany if necessary. 

Attorneys drafting estate plans for clients with assets or a future inheritance in Germany must not only be aware that German succession laws do not recognize trusts, but also consider German forced share claims and German inheritance tax, which will lead to unintended results if not addressed properly.  

About Holger Siegwart 

Mr. Siegwart was born and raised in Southern Germany where he practiced law with an international firm for almost a decade before he relocated to the United States.  

He started practicing law in the U.S. in 2007 and established his own firm in 2010. The experience of living and working in both countries, and the practical understanding of both societies and their legal and administrative systems, have become invaluable assets for his clients.  

Mr. Siegwart serves as a retained expert and expert witness in the U.S. on German law and in Germany on U.S. law. He is one of very few attorneys who are not only licensed in both countries but actually practice in courtrooms in both countries.   

About SIEGWART GERMAN AMERICAN LAW 

SIEGWART GERMAN AMERICAN LAW specializes in connecting both worlds. Every case the firm handles has a German and an American connection. One main focus of the firm’s practice is the settlement of German-American estates and German-American estate litigation.  

SIEGWART GERMAN AMERICAN LAW, INC. 

San Francisco Airport Office, International Trade Building, 1799 Bayshore Highway, Suite 150, Burlingame, CA 94010, U.S.A. 

Tel: (001) 650 259 9670 

F (001) 650 259 9682 

mail@siegwart-law.com 

www.siegwart-law.com 

Published by: Lawyer Monthly - 1st May, 2024

www.lawyer-monthly.com