Expiry of a post-death power of attorney in the case of a sole heir

Michael Rainer's Commercial Law Legal Blogs

Licensed for 14 years

Attorney in Cologne, Germany

If a post-death power of attorney is granted by a testator, this is likely to expire, if the authorised person is the sole heir.

GRP Rainer Lawyers Tax Advisors, Cologne, Berlin, Bonn, Duesseldorf, Essen, Frankfurt, Hamburg, Hanover, Munich, Stuttgart, Bremen, Nuremberg and London www.grprainer.com explains: In its decision dated 10 January 2013, the Hamm Higher Regional Court (OLG) ruled (Az.: 15 W 79/12) that the post-death power of attorney granted by a testator expires if the authorised person is the sole heir.

In the instant case, the Land Registry Office rejected a submission of the husband of the testatrix to transfer ownership. The wife, who died in 2011, had granted her husband a notarised full power of attorney, which was supposed to remain effective even after her death and was thus a post-death power of attorney. After the death of his wife, the authorised husband wanted to vacate a plot of land and give it away to the cousin of his wife, who was also established in a private will of the testatrix as a legatee. Yet the private will alone, which the husband had moreover disclosed as heir, did not satisfy the requirements of the Land Registration Code according to the Land Registry Office.

The husband subsequently lodged a complaint with the land register, which was, apparently unsuccessful. In its ruling, the OLG confirmed that the evidence adduced by the husband must comply with the requirements of the Land Registration Code and the evidence provided by him was not sufficient.

An appeal by the husband with reference to the power of attorney granted was dropped, as the principal and the authorised person must be different persons according to the provisions on representation. The OLG explained that the power of attorney would thus expire if the authorised person is the sole heir. For this reason, the husband must verify his status as heir with his certificate of inheritance in order to be able to carry out the desired transfer of ownership, since he could not present a publicly notarised testamentary disposition.

In addition to legal questions on the law of inheritance, inheritance almost always concerns emotions and internal family sensitivities. Where disputes emerge, legal counsel should be obtained in case of doubt.

http://www.grprainer.com/en/Law-of-Succession.html

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