Notary Appointment to Set Up a GmbH or UG in Berlin: Process and Checklist
For many founders, the notary appointment is the moment when the decisions prepared so far are recorded in binding form. As a GmbH or UG, however, the company only comes into existence upon registration in the commercial register. Anyone visiting a notary’s office for the first time often wonders: who has to attend, which documents are needed and what happens during the notarisation?
Table of contents
At a glance
- All shareholders must take part in the notarisation, in person, in the permissible online procedure or through a validly authorised person.
- The managing directors take part in the commercial register application. They do not necessarily have to attend the same notarisation appointment as the shareholders.
- Participants appearing in person need a valid and suitable identity document. Which further documents are required depends in particular on representation and participating companies.
- The articles of association are notarised. The commercial register application is a separate declaration in which the managing directors’ signatures are publicly certified.
- After notarisation, the requirements for the commercial register application are met. The notary’s office submits the application electronically, and the register court decides on registration.
Who has to attend the notary appointment?
For scheduling, it should first be clarified who has to take part in the notarisation and in the commercial register application.
Shareholders
All shareholders must take part in concluding the articles of association. Anyone who does not attend in person can be represented by another person. This requires a notarised or notarially certified power of attorney. A simple written power of attorney or a scan is not sufficient for signing the articles of association.
Have the power of attorney checked in advance by the notarising notary’s office where possible. The notary’s office will tell you whether an original, an official copy or a certified copy is required. In agreed exceptional cases, a later notarial ratification may also be an option. However, it causes additional steps, possible extra costs and regularly a delay.
For foreign shareholders, additional formal requirements may apply depending on the country of origin and the document, such as an apostille or legalisation. What to consider then is explained in the article on formation with foreign shareholders.
Managing directors
The future managing directors do not necessarily have to be present at the same notarisation appointment as the shareholders. However, the application of the newly formed company to the commercial register must be made by all managing directors. The declarations and signatures required for this are given in person and publicly certified.
Depending on the arrangement with the notary’s office, the commercial register application can be signed at the formation appointment, at a separate appointment or in the permissible online procedure. Therefore, clarify in advance when and by which route the individual managing directors will take part.
Subject to the legal and technical requirements, a GmbH or UG can also be set up via the video communication system of the Federal Chamber of Notaries. Depending on the case, a hybrid procedure with participants on site and online is also possible. Whether the procedure is suitable for the specific formation and which identity documents are needed should be checked with the notary’s office in advance. The page on forming a GmbH online gives an overview.
An avoidable reason for postponed appointments is an expired or unsuitable identity document. Therefore, check its validity early and, if in doubt, ask the notary’s office which alternative valid document can be accepted.
Other persons (depending on the case)
- An interpreter, if a participant does not sufficiently understand the language of the deed and the notary does not translate themselves. Whether a translation is required and which requirements apply to the interpreter should be clarified early with the notary’s office.
- For special tax or legal arrangements, your own advisers may attend; for a standard formation, this is regularly not necessary.
Which documents and details are needed?
Most details should already be available to the notary’s office before notarisation. For the appointment itself, valid identity documents and, where applicable, agreed proof of power of attorney or representation are needed in particular.
1. Proof of identity
- A valid identity card or passport of all persons taking part in person.
If a company is a shareholder, the notary’s office needs proof of its existence and representation. For German registered companies, the register data can often be retrieved officially. For foreign companies, it should be clarified in advance which register documents, certifications, apostilles or legalisations and translations are required.
2. Formation details and key points of the company
These points should be available to the notary’s office before the draft is prepared:
- Company name, that is, the legal name of the company, including the correct legal form suffix “GmbH” or “UG (haftungsbeschränkt)”.
- Registered office, that is, the place specified in the articles, and the domestic business address with street, house number and town.
- Company purpose in clear, understandable form. The article on defining the company purpose provides guidance.
- Amount of share capital and distribution of shares. For a GmbH, a cash or non-cash contribution is possible depending on the arrangement. For a UG, the specified share capital must be paid in full as a cash contribution; contributions in kind are excluded.
- Details of all shareholders and managing directors (name, address, date of birth; for companies, register number and representative bodies).
- Contact details for queries (email, telephone).
Whether the model protocol is sufficient for your formation or individual articles are more sensible should be settled before the draft is prepared. The article on model protocol or individual articles of association helps with the decision.
3. Powers of attorney and special proof, if applicable
- A notarised or notarially certified power of attorney in the form agreed with the notary’s office if shareholders are represented.
- For foreign participants, depending on the country of origin and the document: register documents and translations where applicable, as well as an apostille or legalisation.
Would you like to clarify which documents or powers of attorney are needed for your formation? Book an appointment with Notary Franke and settle the open points before notarisation.
Typical course of the notary appointment
Many imagine the appointment to be more formal than it is. The process follows a clear pattern, and there is expressly room for questions.
1. Arrival, identity check, document check
At the beginning, the participants are recorded, identity documents are checked and, if available, powers of attorney are reviewed. This is not a formality for its own sake. The question is: who declares what, and on whose behalf?
2. Brief final coordination of open points
Final queries and minor adjustments can be settled at the appointment. Fundamental decisions, such as shareholdings, types of contribution, representation rules or special rights of individual shareholders, should however be settled in advance. Especially with several founders, it pays to agree these points together beforehand so that differing expectations do not surface for the first time at the appointment. If the key decisions are settled, everyone can concentrate on final questions and the notarisation at the appointment. Major changes, by contrast, may require a renewed review of the draft or a further appointment.
Read the draft of the articles or the model protocol calmly before the appointment and note your questions. There is room for them at the appointment, but requests for changes to the content are easier to settle in advance than at the notarisation table.
3. Notarisation: reading out and explanation
The notary reads out the deed and explains the key provisions. Reading out is required by law and an essential part of the notarisation: technical terms are put into context so that all participants understand which declarations they are making and which legal consequences are attached. If anything is unclear to you at any point, ask. That is exactly what the appointment is for.
4. Signatures and certifications
At the end of the notarisation, the shareholders or their representatives approve and sign the articles of association. The shareholders or their representatives and the notary then sign the record.
The commercial register application is a separate declaration by the managing directors. Their signatures are publicly certified. This often takes place at the same appointment, but by arrangement it can also be done separately or online.
For companies based in Berlin, the Charlottenburg District Court is the competent register court. The notary’s office submits the commercial register application electronically.
After the notary appointment: the next steps
- In a cash formation, the business account is typically opened after notarisation and the required contribution paid in. For a GmbH, at least 25 per cent of each share taken over in cash and in total at least EUR 12,500 must generally be paid in before the application. For a UG, the share capital specified in the articles must be paid in full. What matters here is shown in the articles on opening a business account and paying in share capital.
- Different requirements apply to a GmbH formed with contributions in kind. The agreed contributions in kind must be transferred to the company before the application so that they are finally at the free disposal of the management. Contributions in kind are excluded for a UG.
- Once the capital has been raised, the management informs the notary’s office and submits the proof requested there. The notary’s office then files the application electronically with the register court. The register court examines the application and decides on registration. The article on commercial register filing in Berlin explains the procedure in detail.
After notarisation and until registration, a pre-company initially exists, which regularly appears in business dealings with the suffix “in formation” or “i. G.”. The company only comes into existence as a GmbH or UG upon registration in the commercial register. What this means for liability is explained in the article on liability before registration.
Checklist for the notary appointment
Use this list to check your preparation point by point:
- legal form and type of contract decided
- shareholders, managing directors and representation agreed with the notary’s office
- valid identity documents checked
- powers of attorney and proof of representation available in the required form
- company name, registered office, business address and company purpose agreed
- share capital, shares and permissible type of contribution decided
- draft read and open questions noted
- for foreign participants, documents, translations and, where applicable, an interpreter arranged
- for a cash formation, opening of the account prepared
- technical requirements for an online appointment checked, where relevant
More from the series: notarisation and the commercial register
Arrange a notary appointment
We are happy to support you in preparing and carrying out your formation with legal certainty. Arrange a notary appointment early to clarify open questions and plan the process in a structured way.
Frequently asked questions about the notary appointment
As a guide, the Federal Chamber of Notaries regularly cites around one to two hours for the notarisation. The actual duration depends in particular on the scope of the articles of association, the number of participants, necessary translations and any open questions.
Minor corrections and final queries can often be accommodated at the appointment. Fundamental changes, for example to shareholdings, contributions or special shareholder rights, should be agreed beforehand. Otherwise, a renewed review or a further appointment may be necessary.
Additional notary fees may be incurred for a separate notarial power of attorney or a later ratification. Therefore, have it checked in advance which form of participation is sensible and necessary in your case.
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Well prepared for your notary appointment
At the notary appointment, the prepared decisions are notarised in binding form. What matters is not knowing every legal detail yourself, but coordinating participants, identity documents, powers of attorney and formation details in good time and reading the draft beforehand. That leaves room at the appointment for the questions that really matter for the later cooperation.
