Following the death of the testator
Funeral: Who pays the funeral costs?
Alongside many other legal and organisational matters, it is often unclear who is ultimately responsible for paying the costs of a funeral. This is distinct from the question of who is authorised to decide on the nature and arrangements of the funeral. This may either have been stipulated by the deceased in their will, or it may fall to the person authorised to make funeral arrangements. It should also be borne in mind that, naturally, the person who enters into the contracts with the funeral director is initially personally liable to the other party to the contract. Below, we provide an overview of the possible parties liable for the costs and their order of priority, taking into account the Hamburg Funeral Act.
As a general rule: the heir is responsible for the funeral costs
The Act is based on the following principle: according to Section 1968 of the German Civil Code (BGB) The heir is responsible for the funeral costs. This is because funeral costs are debts arising from the estate within the meaning of Section 1967 of the German Civil Code (BGB), for which the heir is liable. Furthermore, the person who benefits financially from the inheritance should also bear the costs of a fitting funeral for the deceased.
However, the heir is only required to bear the costs associated with a dignified and appropriate funeral, in accordance with the prevailing views and customs in the deceased’s community.
It is often clear who the heirs are. On the one hand, the testator may specify this in their will (known as ‘testamentary succession’). On the other hand, succession takes place in accordance with the Sections 1924 et seq., 1931 of the German Civil Code (BGB), provided there is no will (known as ‘statutory succession’).
Problem: Renunciation of an inheritance
However, it is not always definitively clear who the heir is at the time of the funeral. This is because the person entitled to inherit has six weeks in which to renounce the inheritance. The funeral usually takes place much earlier. The cut-off date for renouncing the inheritance is the day on which the heir became aware of the inheritance, which, in the case of close relatives, is likely to coincide with the date of death. In the case of an heir appointed by a will, however, the period only begins to run from the date on which the probate court notifies the heir of the will, Section 1944(2), second sentence, of the German Civil Code (BGB). If the deceased was living abroad or if the heir was themselves abroad at the time of the opening of the succession, the time limit is extended in accordance with. Section 1944(3) of the German Civil Code (BGB) to six months.
If one of several heirs renounces the inheritance, the funeral costs are borne by the other heirs who have accepted the inheritance, in proportion to their respective shares of the estate.
If all the heirs renounce the inheritance, it ultimately passes to the state (known as a ‘fiscal inheritance’). Although the state cannot renounce the inheritance, it is not automatically obliged to cover the funeral costs.
Exception: The person liable for maintenance is responsible for the funeral costs
If the inheritance is renounced, the funeral costs must still be borne by the person entitled to inherit, even if that person was, or would have been, obliged to provide maintenance for the deceased. This follows from the obligation to arrange the funeral. The The obligation to bury the deceased is set out in the Burial Act of the relevant federal state regulated, with the laws being based on the order of maintenance liability. According to Sections 10(1) and 22(4) of the Hamburg Funeral Act „The next of kin“ are responsible for arranging the funeral. Put simply, these are, in descending order of priority: the spouse or registered partner; children and their spouses or partners; parents; siblings; a partner not related by marriage; other persons with parental responsibility; grandparents, grandchildren and their spouses/civil partners, and more distant relatives (up to the third degree).
It may be the case that the person responsible for arranging the funeral is not the same person as the person liable to bear the costs. For example, a testator may disinherit her husband and name her sister as sole heir. In this case, whilst the disinherited husband is responsible for arranging the funeral, the sister would have to bear the funeral costs, provided she accepts the inheritance. If the spouse were to pay the funeral costs, he could then reclaim the sum from the sister. In this case, however, her liability would be limited to the estate and, in turn, only to the cost of a reasonable funeral.
If no one can be identified within a short period of time, the competent authority shall arrange for the burial and claim the costs incurred in this regard from the person liable for maintenance in accordance with. Section 10(1), sentences 3 to 5 of the Hamburg Funeral Act back, provided this is not unreasonable. It is deemed unreasonable if the person liable for maintenance cannot reasonably be expected to bear the costs, in particular if that person is themselves destitute or a recipient of social security benefits. The person liable for maintenance is responsible for proving their destitution.
Family problems / Loss of contact
Incidentally, troubled family circumstances can only, in exceptional cases, result in the person responsible for the funeral not being required to cover or reimburse the funeral costs. As a rule, case law only recognises an exception in cases where the deceased committed serious criminal offences against the person responsible for the funeral, such as attempted murder and/or sexual assault. A breakdown in contact (even one lasting for years) is therefore not sufficient.
Social funeral
Only if all the heirs renounce the inheritance and/or are unable to pay the funeral costs due to a lack of financial means, or if there are no heirs at all, will the tax authorities cover the costs.
The death of the testator caused by the fault of a third party
However, by way of exception, (reasonable) funeral expenses may also be claimed from the heir or the person liable for maintenance by the person who culpably caused the death of another person, for example through a road traffic accident or through negligent or intentional homicide, Section 844(1) of the German Civil Code (BGB).
Conclusion
Given the complexity described above, the question of who is responsible for covering the funeral costs can therefore only be answered on a case-by-case basis. Have you, as an heir or next of kin, been asked to reimburse funeral costs that have been advanced? We’ll be happy to look into your enquiry.