You want to make a will in Austria?

Here is what you need to know:

Inhaltsverzeichnis

Writing a will in Austria? This article will provide you with fundamental information that you will need.

Under Austrian inheritance law, a will is a testamentary disposition.

In your will, you determine who is to inherit what after your death. In doing so, you can deviate from the legal order of succession (instestate succession). In addition, specific assets can be distributed to specific persons.

Here you you will find what you need to know if you want to make a will in Austria.

Are there any formal requirements for the testamentary disposition in Austria?

Are there any formal requirements for the testamentary disposition in Austria?

In Austria, can I write my will myself?

Symbolic image: Writing a will in AustriaYes.

In fact, it is probably easiest to write the testamentary disposition yourself by hand and sign it at the end. This is called a handwritten will. It is important that the entire text is written by hand. A handwritten will is fully effective. A notary, lawyer or witnesses are not necessary. In this way, you can make a quick and uncomplicated last will and testament.

However, to ensure that your last will and testament is respected, you should register your handwritten will after it has been made (see below).

It makes sense to make a will in your own hand – without legal assistance – especially if you yourself are familiar with inheritance law or if your will is very simple.

You have a spouse and three children who are still minors. In the event of your death, you want to ensure that your spouse receives as much of your assets as possible. You therefore decree: “I appoint my spouse … as sole heir. The children, on the other hand, are to receive only their compulsory share.”

In Austria, what if I don't write the text of my will by hand?

A will that is, in Austria, not completely written by hand is called a will written by another person.

Such will is usually written on a computer. However, it is also possible that another person writes the text by hand. Then, as the person making the will, you must write in your own hand (i.e. by hand) that the document contains your last will and testament (e.g.: “This is my last will and testament.”). The signature must also be handwritten.

Witnesses when writing a will in Austria

Furthermore, three witnesses must be present at the same time!

  • The witnesses must sign the document with their own hands, indicating their status as witnesses (“as a requested witness to the will”).
  • The will must state the first name and surname. We also recommend ot include the date of birth or address of the witness.
  • The witnesses must be of age and mentally and physically capable of following and reproducing the testamentary act. They must also be impartial, which is only the case if they are not themselves beneficiaries in the will and are not close to the beneficiaries.

As you can see, special caution is required here. It is therefore better to draw up such will in front of a lawyer or notary. However, this is not mandatory.

What is a public will in Austria?

The alternative to a handwritten will or a will made by a third party is a public will. You make a public will orally or in writing in court or before a notary. It is always entered in a register of wills.

What is an emergency will in Austria?

Making a will in an emergency situation under Austrian inheritance lawsThere are cases in which you can no longer make a regular will because there is an imminent danger that you will die or lose your testamentary capacity. These are emergency situations. In such cases, you can make a will orally or in writing with the assistance of only two witnesses. These witnesses only have to be at least 14 years old.

However, such an emergency will is only valid for three months after the danger has ceased to exist.

In Austria, in order to make a will, do I necessarily have to see a notary or lawyer?

No. You can write a handwritten will all by yourself.

A will made in someone else’s hand must be drawn up in front of witnesses and confirmed by them, but a notary or lawyer are not mandatory. In recent years, however, there have been numerous cases in which a will made by another person has been deemed invalid due to formal errors. Therefore, we cannot recommend making a will written by another person without a lawyer or notary. The risk of making a mistake is too great.

Furthermore, you should register a will that you have made. If you make the will with a lawyer or notary, then registration is a matter of course.

In any case, you should have informed yourself sufficiently as to whether what you want to do in your will is legally possible at all. It also makes sense to seek advice on other matters, such as what happens if your heirs die before you do.

Can I also register my private will in an Austrian register of wills?

Can I also register my private will in an Austrian register of wills?

A testamentary disposition cannot fulfil its purpose if it does not emerge in probate proceedings. You can avoid this danger by having your private will – whether made in your own hand or in the hand of another person – deposited with a notary or lawyer, and the notary/lawyer also registers the will in the register of wills.

The notary who carries out the probate proceedings after your death routinely checks the register of wills. This prevents the suppression of your last will and testament in Austria.

What you should not do, on the other hand: Handwrite a private will yourself and then keep it at home. Here there is the obvious danger that a relative who does not like the contents of the will will look for it after your death, find it and make it disappear.

What does it cost to write a will in Austria?

What does it cost to write a will in Austria?

How much it costs in Austria to draw up a will with a lawyer or notary depends above all on how much consultation is necessary in advance and how complex the testamentary disposition ultimately becomes. Lawyers generally charge according to the time spent.

Three-digit sums are realistic for a simple will without a great need for advice, but usually four-digit sums in more complicated cases.

How can I revoke my will under Austrian inheritance law?

How can I revoke my will under Austrian inheritance law?

Revocation of a last will and testament is possible at any time in Austria.

A revocation may be made expressly. In this case, however, the formal requirements that already applied when the will was made must be observed.

Under Austrian laws you can revoke your will by simply destroying it.

In deviation from this, however, revocation can also be effected by burning, tearing up or cutting up.

Crossing out individual passages is also possible and effective.

And finally, Austrian law presumes that a new will revokes the older one.

How long does a will remain valid in Austria?

How long does a will remain valid in Austria?

In Austria, a will remains valid as long as it is not revoked.

Where should I keep my will?

Where should I keep my will?

Make sure that your will is registered and kept in a safe place in Austria.There is a very clear recommendation: Have your will registered in the register of wills by a lawyer or notary. You should also instruct him or her to deposit your will in the office safe. The place of storage will be noted in the register of wills, so that the notary who carries out your probate after your death will also know where to find your last will and testament.

On the other hand, do not put your will in your desk drawer. Do not hide it under your mattress. Do not give it to a friend or relative for safekeeping.

Because there are always two risks: The first risk is that the document will be maliciously destroyed or suppressed. The second risk is that the deed simply never comes out in probate proceedings.

My mother's will has been destroyed. What applies now?

My mother's will has been destroyed. What applies now?

If your mother destroyed her will herself, then that counts as a revocation. Tearing up or burning the (only) document is completely indisputable. This also presupposes a corresponding will to revoke, which will also exist in most cases: A person who burns his will usually wants it to cease to be valid.

On the other hand, someone who only crumples up the document and then throws it away creates considerable legal uncertainty, because it is not certain that this counts as revocation.

If a will is destroyed by accident, this does not count as revocation of the testamentary disposition. In this context, one always speaks of a “coincidence” if the destruction occurred without the knowledge and will of the testator:

The deceased accidentally burnt her will with a batch of other slips of paper before she died. A child who was left out of the will destroys the document. The will burns in the course of a flat fire.

In all these cases, the testamentary disposition remains valid. Of course, the question then arises as to how the content of the testamentary disposition can be proven.

What applies in the case of unclear or ambiguous orders?

What applies in the case of unclear or ambiguous orders?

In the case of a will, the true will of the testator is the decisive criterion for interpretation.

For this purpose, other declarations by the testator or other evidence may also be used to ascertain the true will.

However, this does not circumvent the formal requirement: There must therefore be at least a hint of the true testator’s will in the will. Otherwise, the true will is not relevant.

Who inherits under Austrian laws if there is no will?

Who inherits under Austrian laws if there is no will?

If the deceased did not make a will or effectively revoked her will, then intestate succession occurs.

When can a will be contested in Austria?

When can a will be contested in Austria?

A will is contestable in particular in the cases listed below. However, the individual prerequisites for contestation must always be carefully examined on the basis of the individual case.

  • Formal requirements were violated when the will was drawn up.
  • The deceased was not capable of making a will at the time the will was made.
  • The deceased was subject to a mistake when making the will.
  • What was ordered in the will is impossible or impermissible. Of particular relevance here are breaches of morality: an immoral will can be contested.

Details on contesting a will can also be found here. 

Contestation of a will in Austria due to lack of testamentary capacity

A person is only capable of making a will if he or she can understand the meaning and consequences of his or her testamentary disposition and act accordingly.

The will is invalid if the deceased did not have testamentary capacity when it was made. Testamentary capacity and general capacity do not necessarily have to coincide: As a rule, less stringent standards are applied to testamentary capacity than to general legal capacity.

Full possession of mental faculties or full knowledge of the scope of the order in all its effects are not necessary. However, a person making a will must at least act with the awareness that he or she is making a testamentary disposition. Moreover, he or she must be able to understand the meaning and consequences of the testamentary disposition.

The minimum requirement can be considered to be the capacity of understanding and will that a 14-year-old person usually possesses.

Testamentary capacity can be excluded not only by intoxication or a mental disorder, but also in particular by a sufficiently advanced dementia. However, a so-called “lucid moment” can temporarily restore testamentary capacity, even if there is testamentary incapacity before and after this moment.

A lucid moment means that you are able to make a will in Austria.The deceased, who suffered from dementia, had a “lucid moment” lasting two days shortly before her death. During these two days she was able to understand the meaning and consequences of her testamentary disposition and to act accordingly. If she used this time to make a will, then her testamentary disposition is valid. A challenge must then fail, even if it is proven that the deceased was incapable of making a will both before and after these two days.

The burden of proving the lack of testamentary capacity lies with the person who invokes the lack of testamentary capacity and challenges the will. However, once it has been proven that the deceased was already incapable of making a will before the will was made, then the person invoking the validity of the will must prove that the will was made in a light moment.

Challenge due to an error

Sometimes an error occurs when drafting the last will and testament.

First of all, an error in declaration is conceivable. This involves errors in the wording. Classic examples are a prescription or promise or the use of incorrect technical terms. In the case of an error in declaration, a challenge is generally not necessary because a testamentary disposition is to be interpreted on the basis of the true will of the deceased anyway, as long as this was at least implied.

In the case of an error regarding content, on the other hand, the wording was impeccable and the error concerned an aspect that became part of the testamentary disposition.

In her will, the deceased had given her children the compulsory portion. She also stipulated there that this compulsory portion should first be given to her daughter in the form of a certain necklace, and that she should receive the rest in money.

In fact, the deceased was not the owner of this necklace, which she did not know.

Finally, a testator can be mistaken about a motive.

The deceased has passed over her adopted child in the will because she was of the opinion that adopted children cannot be appointed as heirs in the will.
 
The deceased has appointed her grandchild as sole heir, but does not know that she is not related by blood to this sole heir at all, because this grandchild was not fathered by her son, his legal father.

A challenge on the grounds of an error of motive is only possible if the person making the will has indicated the erroneous motive. Although a statement in the will itself is not required, this is an important restriction of the right of contestation on the grounds of a mere mistake of motive. Moreover, the misconception must be based solely on this motive. The burden of proof lies with the person contesting. In some cases, these requirements lead to great legal uncertainty. Legal advice is absolutely necessary here.

Challenge on the basis of mistakenly passed over children

A special case is when children and their descendants have been passed over by mistake:

When the will was made, a child already existed of which the testator was unaware. Or a child is added after the will has been drawn up, of which nothing was known at the time the will was drawn up.

In these cases, the law presumes that the error was causal for the testamentary disposition:

  • If the child passed over in error has siblings, then it is presumed that the deceased would have left as much to the child passed over as to that of his other children whom he left the least. Therefore, if the deceased has placed one of his children on the compulsory portion, then the child who has been passed over can also only claim the compulsory portion.
  • If, on the other hand, the child who was mistakenly left out is the only child of the deceased entitled to the compulsory portion, then the will is completely cancelled by the contestation. Intestate succession applies.

Even in the case of a child who has been passed over in error, a contestation of the will is necessary in order to assert the error. The contesting child must prove an error or ignorance on the part of the deceased at the time the will was made.

What is a legacy?

What is a legacy?

A legacy is also called a bequest. In this case, certain items from the estate are donated to certain persons. These persons are called “legatees”. The legatee therefore does not become an heir.

“I appoint my spouse as sole heir. However, I bequeath the piano to my nephew.”

The legatee has a claim under the law of obligations against the estate. After the inheritance, his claim is directed against the heir. If the heir does not voluntarily hand over the bequeathed property, the legatee can sue the heir for restitution.

What is a substitute heir under Austrian law?

What is a substitute heir under Austrian law?

Sometimes the appointed heir does not get to inherit: For example, the heir could be predeceased or die at the same time as the testator.

The testator and her spouse, whom she had appointed as sole heir, die simultaneously in a plane crash.

However, it is also possible that the appointed heir is unworthy of inheritance or refuses the inheritance.

The spouse appointed as sole heir has only two months to live due to cancer. He therefore rejects the inheritance.

In this case, a substitute heir can be appointed. The substitute heir therefore only inherits if the heir appointed in the first place does not receive the inheritance.

Other substitute heirs can also be appointed here, always in the event that all the heirs in the first place do not come into the inheritance. As soon as an appointed heir has made a declaration of acceptance of the inheritance, all substitute heirs in succession expire.

The law presumes that the descendants of a testamentary child are, in case of doubt, his or her substitute heirs. Therefore, you do not have to make such a substitute inheritance in your will.

The testator has appointed her three children as heirs. If one of the children predeceases her, her children are substitute heirs, even if this was not expressly stipulated in the will. A child who has been granted an inheritance in the will can therefore renounce the inheritance at any time and thus help his or her own children to inherit.

What is an inheritance by succession?

What is an inheritance by succession?

The law also gives a testator the opportunity to determine who should inherit her property after her heirs (in German: “Nacherbschaft”).

In the case of subsequent inheritance, heir 1 thus receives the testator’s assets first. After him, i.e. after his death, it is then heir 2’s turn. In this way, heir 1 is obliged to hand over the deceased’s estate to the next heir at a certain point in time. This point in time can be the death of heir 1, but also another point in time specified in the will, such as the coming of age of heir 2. The succession burdens the previous heir (i.e. heir 1). This is because he or she may use the estate without restriction, but must preserve the substance and may neither sell nor encumber the estate. The encumbrance of a property with a succession is noted in the land register.

However, the testator may also order a subsequent inheritance on the remainder(in German: “Nacherbschaft auf den Überrest”). Then the previous heir (heir 1) can dispose of the estate freely, i.e. without restriction, as long as he lives. The subsequent heir (heir 2) then only has what is left. This is the “remainder”.

Can a will contain conditions under Austrian law?

Can a will contain conditions under Austrian law?

Yes.

The allowance can be made dependent on the occurrence of certain events, such as graduation, marriage, etc. This is called a condition precedent.

“My son shall be the sole heir, but only if he has overcome his addiction by the time of my death.”

Conditions subsequent are also possible. In this case, the right has already been acquired, but can be lost again.

“My son is to be the sole heir. However, if he does not take care of his mother and look after her, but moves her to a nursing home, then he shall lose his inheritance.”

Obligations are also possible (in German: “Auflagen”). Such obligation prescribes a certain behaviour to the heir or prohibits a certain behaviour.

“”My son shall be the sole heir, but he shall be obliged to take care of the grave where I and his mother lie and moreover to donate once a month an amount of € 300.00 to “Doctors without Borders”.”

Still questions on writing a will in Austria?

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Our passion: Inheritance law.

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Cover picture by Rido

 

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