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.
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
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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