In Austria, can I write my will myself or should I go to a lawyer for inheritance law?
In Austria, can I write my will myself or should I go to a lawyer for inheritance law?
- Practical tip
A rule of thumb: The larger your assets, the more complicated your family structure and the more detailed you want to regulate your estate, the more important it is to seek advice from a lawyer for Austrian inheritance law or a notary.
Even with a supposedly “simple” will, difficult questions and problems can quickly arise. In addition, there are numerous formal requirements to be observed in inheritance law, which your lawyer will know.
If, for
example, your answer to one of the following questions would be
“yes”, then it makes sense for you to seek the help of an Austrian lawyer for
inheritance law or a notary:
- Do you have several children and difficulties with the fair division of assets?
- Have you made any major gifts recently?
- Do you want to bequeath certain items to certain heirs?
- Are you living in a cohabiting relationship?
- Do you want to disinherit someone or put them on the compulsory portion?
- Do you live or work abroad?
- Are you yourself a foreigner or do you have assets abroad?
- Are you not sure how to write a will?
- Are there real estate assets involved?
- Do you want to pass on/bequeath your company/shares in your company?
- Examples
You want your children to get only the compulsory portion so that your husband gets as much as possible. Since your husband does not play the piano, you want your children to share your valuable Steinway grand piano, so that the compulsory portion is covered.
Your partner and you own a condominium. You want to provide each other with the best possible security.
You hold shares in a limited liability company.
You want one of your children to inherit nothing at all because this child has abandoned his or her mother.
You gave a plot of land to one of your three children years ago. At that time, it was only a green area, no building was possible. In the meantime, this land is worth considerably more than it was back then because it has been converted into building land. You want to treat all three children equally.
10 mistakes in your will that your lawyer for inheritance law will avoid for you
10 mistakes in your will that your lawyer for inheritance law will avoid for you
1. The Austrian will violates formal requirements
Formal requirements are mandatory under Austrian inheritance laws. This means that a will that does not comply with the formal requirements is invalid. It is treated as if it did not exist, even if the testator’s will is clear from it.
- Practical tip
No matter how much thought you have put into your will, if it is invalid due to a lack of form, intestate succession will apply!
This applies even if no one has any doubts about what you actually wanted.
- Examples
The deceased did not sign the handwritten will at the end.
The deceased wrote his will alone on the computer and printed it out.
The witnesses have signed on an additional blank and loose sheet of paper, so that the deed unit is missing.
The witnesses are not competent witnesses to the will.
2. The will is not found after death
Keeping your will at home does not ensure that it will be found by your heirs after your death.
If all the descendants (and their partners, children etc) do not know where it is, it may be disposed of without any bad intention.
Not to mention the possibility of someone deliberately destroying it.
If your will cannot be found, there will be Austrian intestate succession!
- Practical tip
You can deposit your Austrian will with a lawyer for inheritance law or a notary.
Your lawyer or notary must then also enter it in the Austrian register of wills. This register is consulted in Austrian probate proceedings. Your will cannot be overlooked.
3. You have disinherited your child without checking whether this is possible
Disinheritance is only possible in Austria if there is a corresponding legal reason.
The unlawfully disinherited person now has (at least) a claim to a compulsory portion against the heirs. The heirs have to pay him the compulsory portion in money, which can cause them economic problems if they do not have so much liquid assets themselves.
The heirs may be forced to sell parts of the estate. You could have prevented this by allocating certain items to your child, offsetting them against the compulsory portion.
- Practical tip
Always keep an eye on the compulsory portion claims of all beneficiaries!
If these are overlooked or not sufficiently taken into account, this can lead to great difficulties. Your instructions in the will may then not be fully implemented.
4. There is a foreign connection
Have you lived in more than one country in your life and made your will when you lived somewhere else?
In some cases, the will may not fit the legal system that has to be applied in your probate proceedings. Then it is not certain that your will can be fully implemented. Advice is then absolutely necessary.
- Example
The deceased, an Austrian citizen, made her will in London while she was habitually resident there. She did not have to take into account any beneficiaries of the compulsory portion. A few years before her death, she returned to Austria. As a result, Austrian inheritance law becomes applicable again, in particular also the law on compulsory portions. The deceased is well advised to review her will and consider whether her testamentary heir will also be able to serve the compulsory portions.
5. You have miscalculated
It may sound banal. But practice shows that miscalculations happen again and again.
They mostly do not occur in simple dispositions, but rather in detailed and particularly “well thought-out” regulations.
If you have distributed more or less in total than is available, quotas must be reduced or the remainder divided up. These adjustments can be costly and lead to conflicts among the heirs.
6. Multiple wills
Have you already written several wills and adapted your last will depending on your life situation?
Then be careful!
If you have not expressly revoked all older wills or if your wills partly show no date, then it can lead to great uncertainty in the probate proceedings as to which will is valid.
7. Gifts
Do you give away most of your assets because you assume that your descendants’ compulsory share will be smaller as a result?
This can be wrong! Under certain circumstances, gifts are taken into account for the claim to the compulsory portion and the donee must return a portion.
8. Linguistic errors
In wills made without legal support, we often see incomprehensible or contradictory wording.
It becomes dangerous especially (but not only) when non-lawyers want to express themselves in a particularly legal way. Because the so-called “legalese” can be confusing and sometimes turns out to be a “boomerang”: a deceased person wanted to do it especially “right” and use the legal terms. However, since she did not fully grasp the meaning of these terms, she arranges things in this way that she never wanted.
- Practical tip
With simple wills à la “After my death, my spouse Franz should inherit everything.” this risk is very small.
However, if it says, for example, “After my death, my spouse Franz shall inherit everything. Our children shall receive their compulsory share. My trumpet shall go to our daughter.” Does the daughter then receive the trumpet in addition to her compulsory portion? Or is the trumpet already part of the compulsory portion? A clearer formulation would have been advisable here.
- Example
You appoint your three children as heirs and stipulate that your youngest daughter should get the holiday home. They are to share the bank deposit. Does this mean that all three children will receive the same amount and that your youngest daughter will receive less of the deposit by the value of the holiday home? Or should all the children receive the same amount of the deposit and the youngest additionally the holiday home?
9. Forgetting substitute heirs
Have you considered what should happen if the persons named in the will die before you or together with you?
- Example
According to your will, your partner should inherit everything after you. You do not have any children. But then you both die together in a plane crash.
In any case, appoint a substitute heir. This is the person who comes into the picture if the heir does not come into the inheritance for some reason (more on this here).
10. The forgotten partner
In your will you leave everything to your children or nephews/nieces because you assume that your partner will inherit part of it anyway?
That is wrong!
If you do not include your partner in your will, he will get nothing. He has no legal right to inherit.
In Austria, can I make my will with a lawyer for inheritance law or with a notary?
In Austria, can I make my will with a lawyer for inheritance law or with a notary?
If you want to make a will in Austria, you can consult a lawyer or a notary. With a lawyer, however, you should make sure that he or she works regularly in the field of Austrian inheritance law.
Both your lawyer for inheritance law and your notary will give you competent advice and, together with you, draft a will that is individually tailored to you and your circumstances.
- Practical tip
Ask your lawyer specifically whether he regularly drafts wills and whether he regularly represents clients in probate proceedings.
Costs: Is advice on inheritance law from my lawyer expensive?
Costs: Is advice on inheritance law from my lawyer expensive?
As a rule, the answer is “yes”. A lawyer costs more than a carpenter.
However, the investment is usually worth it. After all, it is usually either about your last will and testament or about whether you will inherit something or not.
The fee for drawing up a will depends on how extensive and complicated your estate is and whether you have any unusual wishes or special need for advice.
What is certain: Compared to litigation between your heirs, which is an easy possibility if your will is unclear, the cost of drafting a will is usually negligible.
I have a business. Under Austrian inheritance laws, what happens to it after my death ?
I have a business. Under Austrian inheritance laws, what happens to it after my death ?
When the owner of a business dies, many questions arise:
- Who will continue to run the business?
- Should an heir step in?
- Will the other co-shareholders continue the business on their own?
- Should the company be dissolved?
A lawyer or notary with expertise not only in inheritance law, but also in corporate law and company law, can give you the best possible advice in such cases.
In the event of a dispute between heirs in Austria: Contact a lawyer for inheritance law!
In the event of a dispute between heirs in Austria: Contact a lawyer for inheritance law!
If you are a potential heir and a disagreement arises in the probate proceedings, it is helpful to have a lawyer for inheritance law on your side.
Your lawyer can inform you about all chances and risks in the proceedings and then also represent you in court right away (which a public notary cannot).
Any more questions on Austrian inheritance law?
Inheritance law is our passion. We are your inheritance lawyer for Austria.
We listen and tell you whether we can assist or not. You will not be surprised by any unexpected costs, we will inform you of any costs incurred in good time.
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Cover photo by Tumisu on Pixabay
Symbolic images by kailingpiano on Pixabay (piano) and by Karsten Paulick on Pixabay (property with tree).