Sorgerechtsverfügung Verwahrung

• §§ 344 - 351 Law on the Procedure in Family Matters and Matters of Voluntary Jurisdiction (FamFG) – special official custody by the probate court
• Law on costs of voluntary jurisdiction for courts and notaries (GNotKG)
• §§ 1776 - 1782 German Civil Code (BGB) – Parents’ right to name children (requirements and procedures)

With a custody order - a so-called last will and testament - parents or single parents can regulate in advance who should represent their minor children after their death.

With a custody order, parents or single parents have the opportunity to decide in advance who should represent their minor children as guardian after their death. The appointment of a guardian takes place in the form of a so-called last will and testament, i.e. through a will or inheritance contract.

If there is no custody order, the court will decide, but always in the best interests of the child. However, even if there is a custody order, the court will decide whether the named person is suitable as a guardian. However, the court can only deviate from the custody order if there are legitimate doubts about the suitability of the proposed person.
With the custody order, you can not only name people and a substitute guardian to represent the child, but you can also explicitly exclude people from guardianship.

Before you name a guardian in your custody order, you should talk to them and inform them. Furthermore, children who are 14 years or older can object to the custody order. To ensure that the interests of all parties are protected, you should update the custody order regularly and adapt it to changing circumstances.

The custody order can also be combined. In addition to naming a guardian, you can also stipulate specific requirements for the administration of the inherited assets and separate the guardianship from the care of the assets and divide them between different people.
In order for your custody order to be implemented after death, it is particularly important that it can be found. You have various options for storing the custody order: In addition to storing it with the potential guardian, you can place the custody order in the form of a will in special official custody at the probate court for a fee.

After the deposit, the custody order remains in effect until the child named in it reaches the age of majority and the custody order expires. If you want to revoke the custody order, you must notify the probate court and order the termination of the deposit.

There are forms and templates for custody orders that can help you with the wording and also help you to better comply with the formalities that are required for a custody order.
Please note, however, that the custody order must be made by hand and signed!

The basic requirement for drafting a custody order is that you, as the person drafting it, have custody and therefore legally have the right to appoint someone. In addition, the named guardian must be of legal age.
Since you can only deposit the custody order with the probate court in the form of a will and the custody order is legally a special type of will, certain formalities must be observed for the document to be legally valid. These would be, for example:

• The legal guardians must write the order themselves in handwriting
• The legal guardians must sign with their first and last names
• The custody order must include the place and date

NOTE: When drafting a custody order, you can also seek advice from notaries, lawyers, guardianship associations and guardianship authorities.

As with any acceptance of a testamentary disposition into special official custody, a fixed fee of 75 euros is charged.

• You write a custody order by hand, sign it and discuss it with the named guardian and your child.
• You take the original custody order and hand it over to the named guardian or bring it to the probate court.
• A deposit protocol is drawn up at the probate court, which must be signed by the depositor.
• You will then receive a notice of the deposit fee and a deposit receipt.
• After payment of the fee, your custody order will be deposited in the form of a will with the probate court and can therefore be found safely in the event of your death.

NOTE: In addition to the possibility of obtaining advice from a notary, he or she can also take care of depositing the custody order with the probate court for you.

Processing will take place promptly after receipt.

After the deposit, the custody order is valid until the child named in it reaches the age of majority and the custody order expires. If you want to revoke the custody order, you must request it back from the named guardian or notify the probate court and order the termination of the deposit.
After more than 30 years in official custody, the custodian office will determine ex officio whether the will with the custody order contained therein is still valid and will automatically delete it if only one custody order existed.
Please note that children who have reached the age of 14 may oppose the custody order.

No legal remedy provided

• Submit custody order to court
• With a custody order, parents or single parents have the opportunity to decide in advance who should represent their minor children after their death.
• Must be regulated in the will or inheritance contract
• The custody order should be agreed upon by all parties involved and updated regularly.
• It is possible to deposit it with the court so that the order can be found quickly.

Hamburg District Court