The power of attorney says nothing about death. Is it still valid?

Possibly. Expiry depends on the legal relationship underlying the authority (section 168 BGB); where that relationship is a mandate, it does not, in case of doubt, end on the principal’s death (section 672 BGB). Do not rely on it all the same: whoever is shown the power must interpret it — and in case of doubt will refuse rather than risk it.

Can the power of attorney save us the certificate of inheritance?

For acting, often yes; for the land register, no. Section 35 GBO admits as proof of succession the certificate of inheritance, or a disposition on death in a public document together with the record of its opening — a power of attorney is neither. It says who may act, not who has inherited.

One co-heir objects to our using the power. What now?

Then the practical route ends, whatever the legal answer would be. Whether a single co-heir can revoke with effect for all is contested; on an objection, banks and notaries’ offices will as a rule act no further. That is the point at which an ordered conversation achieves more than litigation — and if litigation is needed, a lawyer.

Knowledge · Orientation

A power of attorney spares you not the proof, but the wait.

After a death there are bills, a house and a bank in the way, and the certificate of inheritance takes weeks. A power of attorney that outlives its giver can close that gap — it simply has different limits from the ones most people assume.

The answer first. Authority does not lapse automatically on death. Whether it continues depends on the underlying legal relationship (section 168 BGB); where that relationship is a mandate, it continues in case of doubt (section 672 BGB). It does not, however, replace proof of succession: anyone who wants to be entered in the land register as owner provides that under section 35 GBO. So the power of attorney does not replace the proof — it replaces the wait for it.

In everyday speech both are called a “power of attorney”; in law they are two arrangements. The transmortal power is granted during life and continues beyond death — the attorney could act before and can still act afterwards. The postmortal power takes effect only on death; it exists before that, but is not needed.

In practice after a death the difference is smaller than it sounds: both allow immediate action while the estate is otherwise unresolved. What matters is something else — that the document says so expressly. A power of attorney that is silent about death forces everyone presented with it into an interpretation; and whoever must interpret asks back first. One sentence in the text spares the family those queries.

Neither should be confused with a lasting power of attorney for incapacity: that governs who acts when someone can no longer decide during their lifetime. Many such powers also continue beyond death — but not all, and that is either in the text or it is not.

What it can do is the practical half of the first weeks: pay the running bills of the house, continue or terminate utility contracts, instruct a tradesperson, look after an empty house, speak to the authorities. These are precisely the things that cannot wait while a certificate procedure runs.

What it does not replace is proof of who the heirs are. If the land register is to be corrected — the heirs entered in place of the deceased — section 35 GBO requires the certificate of inheritance, or a public disposition on death together with the record of its opening. A power of attorney says nothing about who has inherited; it says only who may act. Confusing the two is the commonest error on this subject.

The benefit therefore lies in time, not in skipping a step. A certificate of inheritance under section 2353 BGB is applied for, examined and issued; that takes time. The power of attorney bridges those weeks — from the first day, with no application and no court.

For most purposes the power of attorney suffices as it was written. As soon as the land register is involved, however, a separate formal rule applies: consents to registration and other declarations must be proved to the land registry by public or publicly certified documents (section 29 GBO). A handwritten power of attorney from the drawer does not meet that.

From this follows a simple recommendation that costs nothing while the principal is alive: anyone who expects the power might one day concern land should have the signature publicly certified. It cannot be made good later — a signature is certified by whoever watches it being given.

And one more experience we state openly: although a valid power of attorney is effective against everyone, in practice banks frequently insist on their own forms or on a certified document. That argument can be had — it costs exactly the time the power of attorney was meant to save. Whoever has the certification beforehand never has the argument.

On death the estate passes as a whole to the heirs (section 1922 BGB) — and with it the position from which the power of attorney derives. The heirs may therefore revoke it. That is not a design flaw but a consequence: otherwise an attorney could dispose of assets that are not theirs, with the owners unable to do anything about it.

For a community of heirs this means something uncomfortable. Whether a single co-heir can revoke with effect for all is a contested question, and we do not decide it here. In practice the uncertainty is enough: if one co-heir objects, hardly any notary’s office and hardly any bank will still do anything far-reaching on the basis of that power.

The sober consequence for your planning: a power of attorney carries reliably through the weeks in which everyone agrees — and it is weakest exactly when it would be most needed. Where a dispute is in the air, the certificate of inheritance is the more stable route, even though it takes longer. How to order the conversation before it comes to that is set out in a community of heirs and the property.

What to do now, concretely

If the principal is still alive: check whether the existing power of attorney expressly addresses death. If not, that is the one sentence which later saves weeks. Where land may be involved, have the signature publicly certified.

If the death has occurred: look for the document before applying for a certificate of inheritance — in the file, at the notary’s office, occasionally at the bank. Then consider what you actually want to do with it: payments and contracts usually work at once, the land register never without section 35 GBO.

And in every case: speak to the other heirs before making use of the power. Not because you must — but because a power of attorney used without the others’ knowledge turns a convenience into a conflict within days. We have seen that more often than any legal mistake.

The power of attorney says nothing about death. Is it still valid?: Possibly. Expiry depends on the legal relationship underlying the authority (section 168 BGB); where that relationship is a mandate, it does not, in case of doubt, end on the principal’s death (section 672 BGB). Do not rely on it all the same: whoever is shown the power must interpret it — and in case of doubt will refuse rather than risk it.
Can the power of attorney save us the certificate of inheritance?: For acting, often yes; for the land register, no. Section 35 GBO admits as proof of succession the certificate of inheritance, or a disposition on death in a public document together with the record of its opening — a power of attorney is neither. It says who may act, not who has inherited.
One co-heir objects to our using the power. What now?: Then the practical route ends, whatever the legal answer would be. Whether a single co-heir can revoke with effect for all is contested; on an objection, banks and notaries’ offices will as a rule act no further. That is the point at which an ordered conversation achieves more than litigation — and if litigation is needed, a lawyer.