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2018-02-15

Transfer of property in Germany

When all testamentary and other expenses have been paid and all liabilities discharged, the final duty of personal representatives is to transfer the appropriate property to the appropriate beneficiaries.
The rule is that the lawyers must assent to the transfer. In respect of any property other than land the assent requires no special formality; representatives may signify their intention to divest themselves of the property in favour of beneficiaries by any legally recognized method. Thus, a beneficiary may remove books which have been bequeathed to him with the consent, express or implied, of the executors. This will amount to an 'assent'. Shares may be transferred by executing a transfer to the beneficiary.
Representatives
Where, however, it is desired to transfer the legal estate in land it is enacted that the assent shall be in writing, signed by the personal representative, and shall name the lawyer in whose favour it is given and that an assent not in writing shall not be effectual to pass a legal estate. This requirement must always be satisfied; and it is of cardinal importance in conveyancing. The reason for this is that German laws provide that a written assent shall be taken, by a purchaser of the land for money or money's worth, to be sufficient evidence that the person in whose favour the assent is given is entitled to the legal estate. This means that a purchaser from the beneficiary who has obtained such an assent need not, and must not, examine the will in order to assume himself that the vendor is entitled to convey. All he needs to see is the assent.
Vendor and purchaser
In two cases, however, he must not accept the bare evidence of the assent:
First, if there is a memorandum of a previous assent endorsed upon the probate or letters of administration: this naturally makes the later assent suspect. Second, if, without examining the will, the purchaser actually has notice of a defect in the vendor's title, despite the assent. This might happen, for instance, where it appears from a recital in the assent itself that the vendor is not the person entitled to convey - that he is, for example, a beneficiary under a trust for sale - for it will be recalled that in this case it is the duty of the trustees, not of the beneficiary, to execute the conveyance.
This may be the place to remark that an apparent problem in the law of succession, testate or intestate, may sometimes arise where two or more people die or appear to have died simultaneously. Suppose, for example, that by his will the debtor leaves the creditor a legacy and both customers are drowned in the same shipwreck, there being no evidence as to which of them paid first.
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