What are probate proceedings?
What are probate proceedings?
No one may take possession of the estate left behind by a deceased person without authorisation. Not even the rightful heirs are entitled to do so. The estate is settled in a judicial probate procedure. In this process, the assets of the deceased are to be determined and transferred to the rightful heirs. In Austria, about 80,000 probate proceedings are conducted every year.
Who initiates the probate proceedings in Austria?
As soon as the competent court in Austria becomes aware of the death of a person, it initiates probate proceedings ex officio. The competent court is the district court at the last place of residence or habitual domicile of the deceased. In most cases, the registry offices or hospitals inform the courts. As a rule, therefore, no application by the heirs is required.
Something different applies in certain cases with an international connection. A typical case is when the deceased died abroad. Foreign authorities are not obliged to inform the Austrian authorities. The relatives must then take action themselves and initiate probate proceedings.
The probate court opens the probate file. This is subsequently received by the competent notary as the so-called court commissioner. The notary plays an important role in probate proceedings. He is largely responsible for the conduct of the proceedings. Which notary is responsible as court commissioner is regulated by an allocation of duties. Jurisdiction depends on the place of residence of the deceased person and the date of death. The notary is therefore no more a matter of choice than the probate court.
How long do probate proceedings take in Austria?
How long do probate proceedings take in Austria?
The duration of probate proceedings in Austria depends on many factors. In some cases, it can be completed in a few weeks. In most cases, however, it takes several months, in complicated cases even years. There are no fixed deadlines. The parties play just as decisive a role as the extent of the assets left behind.
How does the court commissioner act in probate proceedings in Austria?
How does the court commissioner act in probate proceedings in Austria?
After the transmission of the probate act, the court commissioner summons the so-called death recording. This serves to obtain general indications for the conduct of the probate proceedings. If potential heirs (e.g. spouse, children) are known to the notary, he usually invites them. The court commissioner decides for himself how and with whom he establishes the death record. Frequently, the person who paid the funeral costs or with whom the deceased lived in the same household receives the invitation. A personal appointment is not mandatory for the death record, but it is the rule. A lawyer can represent you, which means that you do not have to travel to Austria.
The notary collects the following:
- Details of the deceased;
- The assets left by the deceased, including rights and liabilities;
- The funeral expenses and the person who advanced them;
- Documents relating to testamentary dispositions (in particular wills and codicils, their revocation, legacies, inheritance and compulsory portion contracts, inheritance and compulsory portion waiver contracts and their revocation, and names of witnesses to oral testamentary dispositions);
- Details of legal heirs and heirs appointed on the basis of a testamentary disposition;
- Details of persons of whom the deceased was the legal representative.
How does the court commissioner determine the assets in probate proceedings in Austria?
How does the court commissioner determine the assets in probate proceedings in Austria?
The court commissioner must determine the extent and value of the assets left behind. These assets are distributed to the heirs in the course of the probate proceedings and are the basis for calculating any claims to a compulsory portion.
The death record as a first overview
By recording the death, the notary can obtain an initial overview of the deceased’s financial situation. The information provided by the summoned persons plays an important role. They are obliged to comply with the summons and to answer the questions of the court commissioner truthfully. As a rule, the close relatives know about the financial situation of the deceased or can provide the notary with relevant information about existing assets.
Does the court commissioner have other options for determining the assets in the course of probate proceedings in Austria?
The court commissioner also has numerous possibilities himself to determine the assets left behind. Of particular importance is the information from credit institutions about bank balances of the deceased. This also includes any securities accounts. Credit institutions are obliged to provide information to the court commissioner. Banking secrecy does not apply to him/her. The notary may also search the land register for real estate assets and the companies register for company shareholdings.
The court commissioner also has the possibility to open the flat, the business premises, cupboards and lockers (e.g. safes) as well as other containers of the deceased with care. The flat of the deceased is an important point of contact for the court commissioner. Assets or at least indications of assets are often found there. Testamentary dispositions are also often kept in the flat. Trusted third parties are to be involved in the inspection. In practice, these are usually the relatives of the deceased.
- Example
For the purpose of ascertaining the assets, the notary enters the deceased’s flat. He searches his cupboards and discovers a safe in the wardrobe. He finds the corresponding key in a desk drawer. The notary is allowed to open the safe. A large sum of cash is revealed, as well as a will in which the deceased has appointed his surviving wife as his sole heir.
The notary takes over both the cash and the will. They are now part of the probate proceedings.
By means of an edict, the notary may request creditors of the estate to file their claims within a certain period of time. In this way, he can also identify unknown liabilities of the deceased. In certain cases, the creditors must be summoned, otherwise an application by an heir is required. Public notice must be given in any case if at least one potential heir makes a conditional declaration of acceptance of inheritance.
I suspect that the deceased has assets in an unknown bank account
In principle, it is not the task of the court commissioner to search for unknown or missing assets. Therefore, he does not have to inquire ex officio at all banks whether the deceased had assets with them. However, the court commissioner is obliged to make such enquiries if there are indications to this effect. The statement of such an assumption by a relative of the deceased is usually sufficient.
In such cases, the court commissioner can carry out a so-called bank round call via the Association of Austrian Banks and Bankers. In this way, unknown bank balances or safe deposit boxes can be found under certain circumstances.
In Austria, what happens to the assets during the probate proceedings?
In Austria, what happens to the assets during the probate proceedings?
As a rule, in Austria, the close relatives keep the assets of the deceased troughout the probate proceedings.
In addition, the court commissioner has the possibility to secure the assets. He makes use of this possibility in particular if there is a danger that parts of the deceased’s assets will be taken away. Safeguarding is also conceivable if no relative declares his or her willingness to take custody. Security measures include sealing or safekeeping with the court commissioner himself or with an external custodian. It is also possible to change the lock to prevent access to the deceased’s home.
The potential heirs can use and manage the assets left behind during the probate proceedings. They can therefore use the deceased’s television, drive his vehicle or read his books. However, this right is only granted to those persons who have made a declaration of inheritance and have sufficiently certified their right to inherit (e.g. by presenting a will).
How does the Austrian court commissioner find the potential heirs?
How does the Austrian court commissioner find the potential heirs?
There are various ways to locate the heirs. First and foremost, the court commissioner is obliged to carry out a query of the Austrian Central Register of Wills and the Register of Wills of Austrian lawyers. In practice, these searches take place before the death is recorded. In this way the court commissioner finds out whether a will has been entered in a public register.
If a testamentary disposition has not been entered in any register, it ultimately depends on chance and the cooperation of other persons whether it is found. In principle, everyone is obliged to submit testamentary dispositions or other documents relevant to the succession (e.g. inheritance contracts) to the court commissioner. This obligation exists even without a specific request.
- Practical tip
A testamentary disposition cannot fulfil its purpose if it is not found in the course of probate proceedings. Therefore, have your testamentary disposition entered in the register of wills. This will prevent the suppression of your last will and testament.
Here you can find more information on the requirements for a valid will in Austria.
Sometimes the court commissioner finds testamentary dispositions in the home of the deceased or in the safe deposit box of his bank. We heavily advise against keeping them at home. There is a risk that they will either not be found or will be taken away by other people who do not like their contents. To a certain extent, the court commissioner is also obliged to search for heirs. He may, for example, inquire at the registry office or the main association of social security institutions to find possible heirs. If the heirs are completely unknown or if there are indications that other heirs are possible in addition to the known persons, he issues a so-called edict of inheritance. This is a public notice with an invitation to come forward within six months. The edict file can be accessed by anyone at www.edikte.justiz.gv.at.
This register is often read by heir searchers, so-called “genealogists”. These people specialise in finding heirs for a fee. Genealogists are also employed by the court commissioner in individual cases. However, they are not obliged to do so.
Once potential heirs have been found, they are contacted by the genealogist. He informs them that they are possible heirs. The genealogist will not mention the name of the deceased at first in order to secure his claim for time and costs.
- Practical tip
Have you been contacted by a genealogist?
Please contact us. We will be happy to advise you on your legal options and the highest court rulings on this subject.
If no heirs can be found despite all efforts, the Republic of Austria may inherit in the last resort.
How are the heirs finally determined in Austrian probate proceedings?
How are the heirs finally determined in Austrian probate proceedings?
The potential heirs are now notified by the court commissioner. The probate hearing phase begins. It forms the core of the probate proceedings. This occurs if there is no abbreviated procedure.
The declaration of acceptance of the inheritance is a central element of the probate proceedings. The court commissioner must request the heirs in question to submit one. If the heirs follow this request, they indicate that they wish to accept the inheritance.
Initially, only the testamentary heirs are to be requested to submit a declaration of acceptance of the inheritance. The court commissioner will send a copy of the testamentary disposition to the legal heirs. However, he will only request them to submit a declaration of acceptance of the inheritance if the heirs appointed by the will do not comply with the request within the set period of time. This also applies to persons entitled to a compulsory portion. Failure to meet the deadline does not result in the loss of the right to inherit. The eligible heirs may submit the declaration of acceptance of the inheritance even after the deadline has expired.
At the same time as the request, the court commissioner sends a provisional list of the assets and debts left behind. The heirs can thus obtain an overview of the asset situation. The potential heirs need this information to decide whether to make a conditional or unconditional declaration of acceptance of the inheritance (see below).
What should the declaration of acceptance of inheritance look like and what is its content?
The declaration of acceptance of inheritance must contain:
- the personal data of the person claiming the inheritance (this is the person making a declaration of acceptance of the inheritance);
- the ground of appeal under inheritance law (e.g. intestate succession, will, contract of inheritance);
- the express declaration to accept the inheritance;
- the declaration as to whether the inheritance is to be accepted conditionally or unconditionally (see below);
- the share of the inheritance, insofar as it is possible to state this at the time the declaration is made.
What are the differences between a conditional and an unconditional declaration of acceptance of inheritance?
The eligible heirs may make a conditional or unconditional declaration of acceptance of the inheritance. The declaration of acceptance of the inheritance cannot be revoked subsequently. The heir cannot subsequently convert an unconditional declaration into a conditional one.
The unconditional declaration of acceptance of the inheritance has the consequence that the heir is liable for the debts of the deceased without limitation, even with his or her own assets. This also applies if the estate is insufficient to cover these claims. Whether the heir knew of the existence of the debts is irrelevant.
- Example
In the course of recording the death, the notary determined the financial situation of the deceased. He established assets in the amount of € 300,000. These assets were offset by debts of € 500,000.
If the daughter of the deceased makes an unconditional declaration of acceptance of the inheritance, she is liable without limitation for the debts of her deceased father. As sole heir, she receives all the assets. At the same time, however, she must pay the debts in full from her private assets.
The conditionally declaring heir is also liable with his own assets, but only up to the amount of the estate to which he is entitled. Therefore, he does not have to pay more than he receives.
- Example
In the case of a conditional acceptance of the inheritance, the single daughter receives her father’s assets. At the same time, she is liable for his debts with her own assets. In contrast to the unconditional declaration of acceptance of the inheritance, however, this liability is limited. In any case, she does not have to pay more than the € 300,000 to her father’s creditors.
- Practical tip
An unconditional declaration of acceptance of inheritance should only be made if the deceased’s financial circumstances are precisely known or if one at least knows that there are more assets than debts.
Why should one make an unconditional declaration of acceptance of inheritance at all?
The conditional acceptance of the inheritance has the disadvantage that an inventory is drawn up ex officio. The inventory is a complete representation of the assets and liabilities of the deceased. In many cases, the involvement of an expert will be necessary for this. The inventory prolongs the probate proceedings and may be costly. The costs are ultimately borne by the heirs themselves.
The drawing up of an inventory automatically leads to limited liability, even of the heirs who declare their inheritance unconditionally. Furthermore, in the case of a conditional declaration of acceptance of inheritance, the court commissioner is obliged to issue a public summons to the creditors of the estate to file their claims within a certain period of time. This also takes time.
How is the final determination of the assets left behind made if no inventory is drawn up?
If no inventory is to be drawn up, the final determination of the assets is made by the potential heirs themselves. The court commissioner must ask them to submit a declaration of assets. In it, the heirs must describe and value the assets of the deceased. The information must be correct and complete. A declaration that is not truthful may result in penal consequences.
Do I have to take over the assets left behind?
Heirs are not obliged to accept the inheritance. They have the option to disclaim the inheritance (“negative declaration of acceptance of the inheritance”). The disclaimer is irrevocable and has the consequence that the right of inheritance falls to the other heirs. It is not sufficiently clear whether a disclaimer also applies to one’s own descendants. We therefore recommend stating in the declaration of disinheritance whether this should be the case or not.
What happens if several heirs lay claim to the assets left behind?
What happens if several heirs lay claim to the assets left behind?
In the event of conflicting declarations of acceptance of inheritance, the court commissioner must work towards reaching an agreement. To this end, he invites the persons declaring their acceptance of the inheritance to a joint meeting in which he discusses the factual and legal situation with them. The purpose of the meeting is to eliminate all contradictions between the declarations of succession by means of acknowledgements. It often turns out that there is only a contradiction at first glance. The claims can possibly be reconciled.
- Example
An inheritance contract was drawn up between spouses. One of the spouses dies. The surviving spouse makes a declaration of acceptance of the inheritance and in doing so invokes the inheritance contract. If another heir now invokes the ground of appeal of intestate succession in his declaration, these declarations are not necessarily in contradiction. With an inheritance contract, only three quarters of the assets can be disposed of. One quarter must remain free. The declaration of acceptance of the inheritance on the basis of the law with regard to the remaining quarter therefore does not contradict the declaration of the surviving spouse.
If an amicable settlement is reached, the probate court shall determine the right of succession. The court is not bound by the acknowledgements made before the notary. As a rule, however, there will be no reason to deviate from the agreement. The remaining declarations of acceptance of the inheritance are then rejected.
If this attempt at settlement fails, the file must be submitted to the court. This is often followed by a lengthy inheritance dispute before the probate court. It is now the task of the judge to determine the “best right to inherit” between the disputants in a binding manner.
Do I have to be represented by a lawyer in these court proceedings in Austria?
Do I have to be represented by a lawyer in these court proceedings in Austria?
If the value of the estate is expected to exceed € 5,000, the parties must be represented by a lawyer. This also applies in the event that it only becomes apparent in the course of the proceedings that this value limit has been exceeded.
How do the heirs get hold of the assets left behind?
How do the heirs get hold of the assets left behind?
If the heirs have been able to successfully prove their right to inherit, the inheritance of the assets follows. For this purpose, the probate court issues a “decision on inheritance” (in German: “Einantwortungsbeschluss”). Only with this decision do the heirs become owners of the probate property.
The decision on inheritance contains, among other things, the designation of the individual heirs, their inheritance titles and quotas, as well as the type of declarations of inheritance made. If the heirs are of the opinion that the court has ruled incorrectly, they can contest the decision.
Do I have to share the assets with the other heirs?
The assets shall be allocated to the heirs named in the decision on inheritance.
If there are several heirs, each is entitled to a share of the estate. This means that no one becomes the sole owner of the deceased’s property. They acquire co-ownership of all items and form a so-called community of heirs. Each person only owns a certain share, which is determined by the inheritance quota. This circumstance can often lead to conflicts, as the heirs can only decide jointly on the inheritance. Consider, for example, the case where several heirs inherit a house. Often they have different interests – one wants to live in it, the other wants to sell his share. Conflicts are then inevitable.
How can the heirs escape this problem?
The heirs can avoid this problem by concluding an agreement on the division of the estate. The agreement on the distribution of the estate is a contract between the heirs. It can already be concluded in the course of the Austrian probate proceedings, or only after the inheritance of the estate. The heirs are completely free to divide the inherited property. Often they agree that a certain thing should belong entirely to one heir. In return, the other heirs make a down payment.
If no agreement can be reached between the heirs, the only remedy is often an action for partition of the estate. This can be filed by any of them and is directed at the division of the estate.
In Austria, do such lengthy probate proceedings always take place?
In Austria, do such lengthy probate proceedings always take place?
In Austria, not every probate procedure consists of a formal hearing and a final probate. Austrian inheritance law provides for simplifications, especially in the case of small and over-indebted estates.
Small estates are those that do not exceed the value limit of € 5,000 and do not contain any real estate. The value of the bequeathed property is determined by the notary within the scope of the recording of the death. He determines whether the prerequisites for a shortened procedure exist. If this is the case, the shortened procedure takes place. In this procedure, the person who has certified his or her claim to the assets can apply to take over the assets in whole or in part. This is usually the heir. However, creditors of the deceased are also eligible.
- Example
The best friend of the deceased organised and paid for the funeral. She makes an application for the transfer of part of the assets left behind in the amount of the funeral costs incurred. She can certify these costs, for example, by presenting the bills.
Potential heirs, beneficiaries of the compulsory portion and creditors may file an application for continuation of the formal probate proceedings at any time. In this case, the court commissioner requests the potential heirs to submit a declaration of acceptance of inheritance. The proceedings take their usual course.
If the notary determines in the course of the death recording that the debts left behind exceed the assets of the deceased, this is referred to as an over-indebted estate. The existing assets can be left to one or more creditors upon application. This so-called “transfer in lieu of payment” is also a possibility to end the probate proceedings without a hearing.
Any more questions on Austrian inheritance law?
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