GERMANY Law and Practice Contributed by: Christian von Oertzen and Philipp Windeknecht, Flick Gocke Schaumburg
controversial. There is no problem when the data is on a device such as a USB stick or a hard disk, as these objects are transferred by way of universal succession to the heirs. A problem arises when the data is stored online – eg, on a cloud or in an online account. There is no agree - ment in the literature on whether digital assets should be included in the inheritance, as they are personal assets; it is argued that accounts and data of a private nature are not inheritable. According to the prevail - ing opinion in the relevant literature, the digital estate should be inheritable. In a ruling in 2018, the German Supreme Court decid - ed that the heirs were entitled to access the Facebook account of the deceased. The account would also be transferred to the heirs by way of universal succes - sion. The court stated that neither the secrecy of tel - ecommunications nor the post-mortem personal right to privacy stands in the way of inheritance. In 2025, the Higher Regional Court of Oldenburg ruled that the contractual user relationship, with its rights and obligations for social media accounts (in this case: Instagram), is transferred to the heirs by way of universal succession. The heir may continue to actively use the account. In a testamentary disposition, orders should also be made regarding digital assets. It should be noted, in particular, that the heirs should also be given access to the digital assets – for example, by deposition of the corresponding passwords. 3. Trusts, Foundations and Similar Entities 3.1 Types of Trusts, Foundations or Similar Entities As the German civil law system does not acknowledge the concept of trusts in its own right, trusts are not an estate planning vehicle in Germany. The private law foundation plays a prominent role in the German tax and estate planning regime. This is especially true for the family foundation, which is not
its own legal form but rather a private benefit founda - tion focused on beneficiaries who are related to the founder of the foundation. In addition to the regular tax burden of a private benefit foundation, a back-up inheritance tax is levied on the estate of the family foundation every 30 years. The gift and inheritance tax rate is favourable since it is based on the relationship between the settlor and the beneficiaries. Whether the back-up inheritance tax and the privilege of the tax rate violate European law is currently unclear. The German tax authorities hold that the privilege of the tax rate only applies to foundations established in Germany, as only these foundations are liable to the back-up inheritance tax. The provisions are not applicable to foreign foundations. In his statement to the European Court of Justice in 2025, the Advocate General expressed the opinion that such an applica - tion of the provisions does not violate the free move - ment of capital. Another important structure for tax and estate plan - As stated in 3.1 Types of Trusts, Foundations or Simi- lar Entities , trusts are not an estate planning vehicle in Germany, as the German civil law system does not acknowledge the concept of a trust in its own right. 3.3 Tax Considerations: Fiduciary or Beneficiary Designation Treatment of Trusts Germany is not a member of the Hague Trust Conven - tion and thus has not ratified the provisions thereof. The German treatment of trusts is typically determined by analogising the trust in question to some other legal arrangement recognised under German law. The analogising procedure involves searching for “similar” or comparable legal structures that can be used for estate planning purposes in the German jurisdiction instead of a trust. The analogising procedure is mainly influenced by the specific trust structure. Testamentary trusts ning is the limited partnership. 3.2 Recognition of Trusts If German succession law applies to the decedent’s estate, it is not possible to establish a trust mortis causa nor to bequeath parts of the estate to an exist - ing trust. In such a case, especially when the testator
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