Use the Lexology Navigator tool to compare the answers in this article with those from other jurisdictions.
Wills and probate
What rules and restrictions (if any) govern the disposition of and succession to an individual’s property and assets in your jurisdiction?
For the disposition of his or her assets, an individual may elect between wills and inheritance contracts. However, Austrian law is relatively strict when it comes to inheritance contracts. Such contracts are permitted only between married or engaged couples. The subject of the contract is limited to three-quarters of the testators’ assets.
Austrian law also provides various types of will substitute that allow the testator to transfer property upon his or her death to a beneficiary outside the probate process, including:
- donation agreements conditioned on the grantor's death;
- private foundations under the Austrian Private Foundation Act; or
- life insurance contracts.
However, the legal entitlement of close relatives to a compulsory share applies in any case.
Austrian law provides for subsequent succession, that is (broadly speaking) limited to the next generation following the testator. A similar rule applies to private foundations. If the sole or the prevailing purpose of a private foundation is to provide maintenance to individuals, the duration of the foundation is limited to 100 years.
What rules and procedures govern intestacy?
Intestate succession procedure applies if the testator has not left a will or the will does not comprise all of the testator’s assets. Relatives inherit in a certain order:
- the first category of heirs includes children and grandchildren of the earlier deceased children;
- the second category includes parents and their descendants; and
- the third category includes grandparents and their descendants.
The spouse or the same-sex registered civil partner is also an intestate heir. However, Austrian law does not grant a statutory right of intestate succession to the surviving partner of a non-registered partnership. Only in case that neither testamentary heirs nor legal heirs inherit, the non-registered partner is entitled to the assets. In the absence of a will, the following principles apply:
- If the spouse or registered partner inherits together with children, then he or she is entitled to one-third of the succession and the rest (two-thirds) is distributed equally among the children.
- If the spouse inherits together with the parents, the spouse is entitled to two-thirds of the succession.
- If the deceased leaves a spouse and no other heirs or only heirs from the third category, the spouse becomes sole heir.
What rules and restrictions (if any) apply to the governing law of a will?
See the questions below.
What are the formal and procedural requirements to make a will? Are wills and other estate documents publicly available?
The following forms of wills exist under Austrian law:
- holographic wills – the entire text is written and signed by hand;
- non-holographic wills – the will is executed in the presence of three witnesses and signed by hand; and
- public wills – the will is executed by a notary or a court.
Generally, wills and other estate documents are not publicly available. However, the will may be registered in the Austrian Central Registry of Wills (or recorded in the Register of Austrian Attorneys). Data of the testator and the location of the will is available, but not the will itself.
Validity and amendment
How is the validity of a will established in your jurisdiction?
Every person who has reached the age of 18 and is of sound mind, memory and understanding is entitled to draw his or her last will. Further, the testator must be aware of the fact that this is his or her last will (animus testandi) when drawing the document.
Generally, there are three ways to create a last will:
- the testator can declare his or her will orally or in writing before a notary public or the competent district court (public will);
- the testator can write down his or her will in his or her own handwriting and sign the will (holographic will); or
- a testament that is not in the testator’s handwriting (eg, typed by a third person) is equally valid if the testator signs the will in the presence of three witnesses and adds the phrase “this is my last will” in his or her own handwriting (non-holographic will). The witnesses must also confirm that this is the testator’s last will and add their signatures with a supplement that indicates their capacity as witnesses.
Oral wills were also valid until December 31 2004. Such private oral wills may still be valid if there is a credible danger that the testator might die or become unable to express his or her last will before he or she can make a will in one of the ways mentioned above. In such case, the testator may establish his or her last will orally or in writing in the presence of two witnesses. The will expires three months after the danger that prompted it has disappeared.
To what extent are foreign wills recognised? Do any special rules and procedures apply to establishing their validity in your jurisdiction?
Austria is a party to the Hague Form of Wills Convention. Generally, under the convention a foreign will is formally valid in Austria if the will’s form complies with the law:
- of the place where the testator declared it;
- of a nationality possessed by the testator or his or her habitual residence either at the time when he or she made the disposition or at the time of his or her death; or
- of the place where they are situated where immovables are concerned.
The convention does not apply on a succession agreement. Therefore, for the validity of a succession agreement, a testator must consider Article 27 of EU Succession Regulation (650/2012), which supplements the Hague Form of Wills Convention. No further special rules and procedures apply for establishing its validity in Austria.
How can the validity of a will be challenged? Can the will be amended after the decedent’s death?
The will of a testator can be challenged if the testator had erred over a substantial fact when declaring his or her last will. Such a substantial error occurs – for example, if the testator had erred about the testamentary beneficiary or the testamentary benefited assets. Further, the validity of a will can be challenged if the testator was not of sound mind when declaring his or her last will. The will of a testator cannot be amended after his or her death; however, a will must always be interpreted according to the testator’s vision.
What rules and procedures govern:
(a) The appointment of estate administrators?
Under Austrian law, the competent notary is appointed by law as estate administrator. There is no requirement for a court to appoint the estate administrator. However, once inheritance proceedings are pending at the competent district court, the administrator acts on behalf of the court to conduct the research and determine the relevant facts that are necessary for the court.
(b) Consolidation and administration of the estate?
The estate administrator must carry out a registration of death. A requirement for a complete registration of death is the consolidation of the estate. Further, during the proceedings, the estate administrator is authorised to administrate and represent the estate as a representative of the court. However, prospective heirs who are sufficiently able to prove their rights of succession are entitled to use, administer and represent the estate together.
(c) Distribution of the estate to heirs?
Under Austrian law prospective heirs are not authorised to acquire the estate of the deceased person immediately after that person’s death. Instead, the prospective heirs must prove their titles and declare whether they want to accept the inheritance. If prospective heirs make an unconditional declaration of inheritance, they are unlimitedly liable for the deceased’s liabilities. If the heirs declare a conditional declaration of inheritance, they are limitedly liable for the testator’s liabilities, restricted by the value of the estate. After the prospective heirs have made their declaration of acceptance of the inheritance, the competent court may decide on the transfer of the estate by the grant of probate. This document entitles the heir to take possession of the estate. Before this decision, the estate is considered to be in suspension.
(d) Settlement of the decedent’s debts and payment of any taxes and fees?
The heirs are liable for the debts of the deceased. However, if a prospective heir declares a conditional declaration of acceptance of the inheritance (inventory of the assets), he or she is liable only up to the value of the inheritance. Under current Austrian law, no inheritance tax exists. However, if the heir inherits real estate, transfer tax is due. The cost of a judicial commissioner who administrates the inheritance case depends on the value of the estate, which serves as the basis when calculating the fees. In addition, a court fee that amounts to 0.5% is due. It is calculated by using the value of the estate as the tax basis.
Are there any special considerations specific to your jurisdiction that individuals should bear in mind during succession planning?
Testators should bear in mind that under Austrian law the children of the testator, as well as his or her registered partner or spouse, are entitled to a compulsory share of the estate that amounts to half of the intestate portion.
Moreover, a testator should bear in mind that under Section 14 of the Condominium Act the co-owner of a condominium is privileged to acquire the other half (owned by the testator) after the testator’s death. Further, spouses, partners and other close relatives are entitled to enter into a rental contract instead of the testator if they have an urgent need for accommodation and have lived together with the testator before the testator’s death (Section 14 of the Tenancy Act).
Since the Succession Regulation entered into force, testators may elect between:
- the law of his or her habitual residence at the time of death; or
- the law of the state whose nationality the testator possessed at the time of making the choice of law or at the time of the testator’s death.
Click here to view full article.