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Succession - Austria

Please note that the original language version of this page German has been amended recently. The language version you are now viewing is currently being prepared by our translators.

TABLE OF CONTENTS

1 How is the disposition of property upon death (will, joint will, agreement on succession) drawn up?

Specific formal requirements must be observed when making a will. The types of will that are recognised under Austrian law include:

  • a public will drawn up by a notary or court,
  • a holographic will, which the testator must write entirely by hand and sign,
  • a written will (handwritten or typed by someone other than the testator), which must be drawn up in the presence of three witnesses.

A contract of inheritance (Sections 1249 et seq. of the Austrian General Civil Code (Allgemeines bürgerliches Gesetzbuch – ABGB)) can only be concluded by spouses or couples who are engaged and actually go on to marry and must take the form of a notarial deed (in accordance with Section 1(1a) of the Law on Notarial Deeds (Notariatsaktsgesetz)); the presence of two witnesses or a second notary is required. A contract of inheritance, which must meet the validity requirements for testamentary dispositions mortis causa, may not dispose of more than three quarters of the estate. In this context, registered partners have the same rights as spouses and partners engaged to be married (Section 1217 of the Austrian General Civil Code).

A joint will may only be made by spouses or registered partners (Sections 583 and 1248 of the Austrian General Civil Code). Note: The institution of ‘registered partnership’ is only open to persons of the same sex.

Donationes mortis causa [gifts of personal property made by someone who expects to die in the immediate future, taking full effect only after the donor dies] are regulated by Section 956 of the Austrian General Civil Code. These can be given through a bequest/legacy or a contract, which must take the form of a notarial deed.

2 Should the disposition be registered and if yes, how?

Wills, contracts of inheritance and any contracts waiving the right to the inheritance of a compulsory/legal portion can be registered in the Austrian Central Register of Wills (Section 140b of the Austrian Notarial Code (Notariatsordnung), provided they have been deposited with a notary, court or lawyer. This electronic directory is managed by the Austrian Chamber of Civil Law Notaries (Österreichische Notariatskammer) and is the only register of wills that is legally regulated. Courts and notaries are required to report the existence of any such documents to the register (Section 140c(2) of the Austrian Notarial Code). The purpose of registration is to make these documents easier to find during probate proceedings.

3 Are there restrictions on the freedom to dispose of property upon death (e.g. reserved share)?

The compulsory portion (which restricts the degree of testamentary freedom) amounts to half the legal portion due for the deceased's issue and, if there are no issue, to one third of the legal portion due for relatives in the ascending line. The compulsory portion for surviving spouses or registered partners is half their legal share. If a compulsory heir never had a close family relationship with the deceased, the compulsory portion may be reduced.

Beneficiaries of a compulsory portion are entitled to waive their compulsory portion prior to accrual of inheritance by entering into a contractual agreement (notarial deed) with the future testator.

The compulsory portion is a monetary claim to a proportionate share of the estate's value.

The right to a compulsory portion must be asserted in court within three years (Section 1487 of the Austrian General Civil Code). The period of limitation commences as soon as the acceptance record is produced in accordance with Section 152 of the Non-contentious Proceedings Act (Außerstreitgesetz – AußStrG).

The compulsory portion may be waived while the testator is still living. This waiver must take the form of a notarial deed or an official court record (Section 551 of the Austrian General Civil Code).

4 In the absence of a disposition of property upon death, who inherits and how much?

If the deceased was unmarried and childless, the parents of the deceased inherit equal shares. If the deceased was predeceased by his or her parents, it is his or her siblings that inherit instead.

If the deceased was unmarried but is survived by his or her children, the children inherit equal shares.

If the deceased is survived by a spouse but no children, the surviving spouse becomes the sole heir if there are no surviving parents, siblings and grandparents.

If the deceased is survived by a spouse and children, the spouse receives one third of the estate and the rest is shared equally between the children.

The inheritance rules for registered partners are the same as for spouses. A non-registered partner (cohabiting partner) only inherits from the estate if there is a testamentary disposition to that effect. However, the surviving cohabiting partner is protected by Austrian tenancy law and the Austrian Law on Co-Ownership of Apartments (Wohnungseigentumsgesetz). If the deceased and his or her cohabiting partner jointly owned an apartment (cooperative apartment ownership), the deceased's share goes to the surviving partner.

If the deceased is not survived by a spouse or by any children, the right of inheritance is granted to the parents of the deceased and their issue (siblings of the deceased) (Section 735 and 736 of the Austrian General Civil Code).

If the deceased is survived by children but not by a spouse, his or her children inherit equal shares (Section 732 of the Austrian General Civil Code).

If the deceased is survived by a spouse and children, the spouse inherits one third of the estate plus the preferential legacy granted by law that entitles him or her to the household items. Two thirds of the estate is split equally between the deceased's children (Section 757 of the Austrian General Civil Code).

Registered partners have the same rights as spouses (Section 537a of the Austrian General Civil Code). Note: The institution of ‘registered partnership’ is only open to persons of the same sex.

5 What type of authority is competent:

5.1 in matters of succession?

District court (Bezirksgericht); court commissioner (notary) as an organ of the court

The authority with jurisdiction in the subject matter and geographical area is the district court where the deceased's last place of legal residence was located (last abode, usual place of residence) (Section 105 of the Austrian Law on Court Jurisdiction (Jurisdiktionsnorm – JN) and Sections 65 and 66 of the Austrian Law on Court Jurisdiction). For the purposes of carrying out the process, the district court relies on the services of a notary acting in the capacity of a court commissioner (Section 1 of the Court Commissioner Act (Gerichtskommissärsgesetz, GKG).

5.2 to receive a declaration of waiver or acceptance of the succession?

District court; court commissioner (notary) as an organ of the court

5.3 to receive a declaration of waiver or acceptance of the legacy?

District court; court commissioner (notary) as an organ of the court

5.4 to receive a declaration of waiver and acceptance of a reserved share?

District court; court commissioner (notary) as an organ of the court

6 Short description of the procedure to settle a succession under national law, including the winding-up of the estate and sharing out of the assets (this includes information whether the succession procedure is initiated by a court or other competent authority on its own motion)

The inheritance process (or ‘probate proceedings’ (Verlassenschaftsverfahren)) is initiated by the district court once the accrual of inheritance has been officially announced. The competent district court is that of the district where the deceased had his/her last abode or usual place of residence. The proceedings are handled by a notary in his or her capacity as a court commissioner and they end with a court order.

Probate proceedings must be officially initiated as soon as the court becomes aware of a death (Section 143(1) of the Non-contentious Proceedings Act (Außerstreitgesetz, AußStrG)).

The court commissioner identifies the heirs as part of the judicial probate proceedings (Section 797 of the Austrian General Civil Code).

The court commissioner (Section 1(2), subparagraph 2b and Section 2(2) of the Law on Court Commissioners) draws up an inventory of the estate if a declaration of conditional acceptance of the inheritance has been submitted [which limits the liability of an heir to the value of the assets they will receive from the estate]; if there are any persons who may be entitled to a compulsory portion; if any persons are minors or may require a legal representative on other grounds; if authorisation has been granted for the inheritance to be segregated from the assets of the heir; if inheritance by a subsequent heir has to be taken into account or if a private testamentary trust has been established; if there is a possibility of the inheritance going to the state for lack of an heir; or if this is requested by any authorised person or by the curator of the estate (Section 165 of the Non-contentious Proceedings Act).

7 How and when does one become an heir or legatee?

No one is allowed to take possession of the inheritance on their own authority. Rather, it must be officially handed over so that it is legally possessed by the heir, a process known as the ‘devolution of property’ (‘Einantwortung’) by order of the probate court (Abhandlungsgericht) (Section 797 of the Austrian General Civil Code and Section 177 of the Non-contentious Proceedings Act). Property can only be devolved once the judicial probate proceedings are complete and a declaration of acceptance of the inheritance has been submitted by the relevant people as evidence of their right to inherit. Even in the case of real estate, ownership is transferred at the time of devolution, i.e. before the new owner has been entered in the land registry. However, if the heirs fail to submit an application for entry in the land registry within a reasonable amount of time, the court commissioner is required to submit the application instead.

8 Are the heirs liable for the deceased's debts and, if yes, under which conditions?

The heirs are liable for the debts of the deceased from their total assets. However, if an inventory has been drawn up, they are only liable up to the value of the inheritance.

9 What are the documents and/or information usually required for the purposes of registration of immovable property?

The document showing legal title of acquisition must be presented to the land registry court (Grundbuchsgericht). Heirs are required to present the devolution order and legatees must present an official confirmation. In addition, it may be necessary to present a tax clearance certificate and, depending on the law of the province concerned, a special permit issued under the legislation governing real estate transactions as well as – where applicable – proof of the transferee's citizenship.

9.1 Is the appointment of an administrator mandatory or mandatory upon request? If it is mandatory or mandatory upon request, what are the steps to be taken?

It is not necessary to appoint an administrator.

9.2 Who is entitled to execute the disposition upon death of the deceased and/or to administrate the estate?

An heir who is sufficiently able to prove his or her right to inherit on acceptance of the inheritance, is entitled to use and administer the inherited assets and to represent the inheritance, unless otherwise stipulated by the probate court (Verlassenschaftsgericht); where this applies to more than one party, all parties exercise this right jointly, unless they agree otherwise (Section 810(1) of the Austrian General Civil Code).

9.3 What powers does an administrator have?

The executor only plays a secondary role during Austrian probate proceedings. This depends on how the court deals with the probate proceedings and the position of the court commissioner, who ensures that the wishes of the deceased are implemented. According to Section 816 of the Austrian General Civil Code, the deceased can use a testamentary disposition to designate someone with responsibility for carrying out his or her final wishes. The scope of this person's duties is defined by the testamentary disposition and may range from monitoring whether the heir/legatee fulfils certain conditions or distributes the estate correctly through to the administration of the estate.

If oral proceedings are arranged as part of the process of summoning the creditors of the estate (Sections 813 to 815 of the Austrian General Civil Code), the court commissioner is required to announce the date of these proceedings and also to summon the executor (Section 174 of the Non-contentious Proceedings Act).

10 Which documents are typically issued under national law in the course of or at the end of succession proceedings proving the status and rights of the beneficiaries? Do they have specific evidentiary effects?

On request, the court commissioner must issue an official confirmation to the beneficiaries as proof of their power of representation (Section of the 172 Non-contentious Proceedings Act).

Once the heirs and their shares have been definitively determined and evidence has been provided to show that the other requirements have been met, the court must devolve the inheritance to the heirs (Section of the 177 Non-contentious Proceedings Act: devolution order). An official copy of the devolution order bearing a certificate of indefeasibility is sufficient to unblock funds held at credit institutions (Section 179 of the Non-contentious Proceedings Act).


The national language version of this page is maintained by the respective EJN contact point. The translations have been done by the European Commission service. Possible changes introduced in the original by the competent national authority may not be yet reflected in the translations. Neither the EJN nor the European Commission accept responsibility or liability whatsoever with regard to any information or data contained or referred to in this document. Please refer to the legal notice to see copyright rules for the Member State responsible for this page.

Last update: 10/06/2015