Insolvency proceedings

If you have inherited and the estate is insolvent and/or over-indebted, you can apply for the estate insolvency proceedings (in due time) for the purpose of limiting liability.

When someone dies (inheritance), the assets of the deceased person (inheritance or estate) as a whole are transferred to one or more other persons (heirs).

The heirs do not only obtain the assets. They are also liable for the estate liabilities.

If the estate is (threateningly) insolvent or over-indebted, you should take into account all the circumstances of the specific individual case and think carefully about how to proceed. If necessary, it is advisable to seek (probably fee-based) advice and help from experts with special knowledge of inheritance and insolvency law. Conceivable as a further procedure in such situations is, among other things:

  • Acceptance of the inheritance with the consequence that you must in principle settle the existing estate liabilities; the liability is generally unlimited, a separation between the estate and other assets of the heir does not take place
  • Formal and timely refusal of inheritance (§§ 1942 ff. BGB)
  • Apply for the opening of insolvency proceedings against the estate at the competent probate court

If you decide to file for insolvency, your liability as heir to the estate liabilities is usually limited to the estate when the estate insolvency proceedings are opened (by the insolvency court).

Please note: In such a situation, you must immediately apply for the opening of the estate insolvency proceedings if you have become or should have become aware of the insolvency or over-indebtedness of the estate. If you do not do this, you are responsible to the creditors for the resulting damage.

If the insolvency court does not open insolvency proceedings over the estate only because the costs of the insolvency proceedings cannot be financed by the estate, you as the heir can raise a plea of pagreness (§ 1990 BGB) if:

  • they are used by creditors of the estate, and
  • the estate is not sufficient to pay this claim.

Application for the opening of insolvency proceedings and, if necessary, further documents

When filing an application, submit directly the documents from which the insolvency court can infer that you are entitled to apply for insolvency proceedings. As an heir, for example, you should explain and credibly demonstrate with suitable documents what results in your position as an heir (for example, by presenting a certificate of inheritance or a will).

Forms/online services available: Yes

Written form required: Yes

Informal application possible: No

Personal appearance necessary: No

Preconditions

  • written request
  • Application by the entitled person:
    • any heir
    • Estate Administrator
    • Guardian of the Estate
    • Executor who is entitled to.dem administer the estate
    • any creditor of the estate
  • Existence of a reason for opening
    • Insolvency (§ 17 InsO)
    • Over-indebtedness (§ 19 InsO)
    • if applicable, imminent insolvency (§ 18 InsO)
  • Estate can probably finance costs of insolvency proceedings

Related Links

  • §§ 315 ff. Insolvency Code (InsO)
  • $$ 1975 ff Civil Code (BGB)
  • § 780 Code of Civil Procedure (ZPO)
  • An application for the opening of insolvency proceedings is formulated and submitted to the competent insolvency court together with the other necessary documents.
  • If not all heirs submit the application, the insolvency court first hears the other heirs.
  • If there is an admissible application for insolvency, the insolvency court will examine ex officio (i.e. on its own) whether there is a reason for opening and whether there is sufficient assets to cover the costs of the insolvency proceedings. For this purpose, the insolvency court usually commissions an expert to prepare an expert opinion.
  • If the insolvency court has completed its examinations and they have shown that there is a reason for insolvency and that the costs of the insolvency proceedings can be financed by the estate, the insolvency court opens insolvency proceedings against the estate.

Responsible for the content
Lower Saxony Ministry of Justice

Last update or date of publication
01.11.2021