Table of contents

What is an Estate?

Probate proceedings are judicial proceedings that are carried out after a death by a notary appointed by the competent district court. The notaries acting in this function are called court commissioners.

In Austria, every inheritance case triggers probate proceedings.

The purpose of the probate proceedings is to grant the estate to the rightful heir under judicial supervision, to protect the rights of minor parties involved and to monitor the fulfilment of the last will.

Legally compliant execution of probate proceedings in Austria – from recording the death to the grant of probate.

Definition of Estate

An estate includes all the rights and obligations of the deceased that are transferred to the heir by way of universal succession.

Heir Representative

Probate proceedings can be carried out not only by a court-appointed public notary but also by an heir representative. An heir representative is a notary or lawyer selected by the heirs, on whom all heirs have agreed and to whom they have granted the power of attorney to represent them in the probate proceedings.

The heir representative conducts the probate proceedings in writing with the competent court in the legal interests of the heirs.

Procedure

The probate proceedings begin automatically as soon as the death of a person becomes known to the competent district court. The registry office that issues the death certificate forwards it to the court. There, a separate file is created and a notary in the function as court commissioner takes over the further processing.

In the first step, the so-called death registration, the personal data of the deceased person, their assets, possible debts and the potential heirs are determined. At the same time, the court commissioner checks whether a will or other testamentary dispositions exist by querying the central register of wills. If it is necessary to secure the estate, immediate measures such as sealing apartments, safekeeping valuables or blocking accounts can be arranged.

In certain situations, the proceedings may end at this point. This is the case, for example, if the estate is very small, if the existing assets are left to the paying person to cover the funeral costs or if estate insolvency becomes necessary.

If the proceedings cannot be concluded in this way, the probate settlement follows. In this section, the heirs are requested to submit a declaration of acceptance of inheritance. With an unconditional declaration of acceptance of inheritance, the heir accepts the estate in full and is also liable with their own assets for existing debts. With a conditional declaration of acceptance of inheritance, on the other hand, the liability is limited to the value of the estate, for which an inventory must be created that accurately records all assets and liabilities.

If several persons see themselves as heirs or contradictory declarations of acceptance of inheritance are present, the court commissioner first tries to reach an agreement. If this fails, the court decides. In addition, it may be necessary to appoint a curator or to publicly request the creditors to register their claims in order to clarify the debt situation unambiguously.

Order for Grant of Probate

At the end of the proceedings is the grant of probate. With this decision, the court transfers the estate to the determined heirs. This transfers all rights and obligations of the deceased person to the heirs. If no heirs are present or can be found, the estate falls to the state as a substitute.

Declaration of Acceptance of Inheritance

Conditional Declaration of Acceptance of Inheritance

The conditional declaration of acceptance of inheritance is the acceptance of the inheritance subject to the inventory. This limits the liability for estate debts to the value of the estate. The prerequisite is the timely preparation of a complete inventory. If the inventory is not established in due time, the limitation of liability is cancelled.

Unconditional Declaration of Acceptance of Inheritance

An unconditional declaration of acceptance of inheritance is a declaration with which an heir accepts the inheritance unconditionally. With the unconditional declaration of acceptance of inheritance, the heir becomes the legal successor of the deceased and takes over the entire assets of the deceased, including their debts.

The unconditional declaration of acceptance of inheritance can be made orally or in writing. In practice, however, it is advisable to submit the declaration in writing in order to prevent later disputes between the heirs.

Important!

It should be noted that the acceptance of an inheritance can also involve risks, especially if the estate contains significant debts or obligations. It is therefore advisable to carry out a comprehensive review of the estate and its debts before submitting an unconditional declaration of acceptance of inheritance.

Consequences of Granting Probate to a False Heir

The grant of probate to a false heir, the so-called apparent heir, can happen if another (better) potential heir has been overlooked, or the apparent heir lacks the authorization.

The true heir can therefore, even after the grant of probate with the so-called inheritance claim, demand the surrender of the entire estate.

However, it also happens that the apparent heir has already sold parts of the estate. In this case, the law protects the bona fide third party: If the buyer cannot recognize that the apparent heir has no power of disposal, he nevertheless acquires ownership of the item in good faith.

Estate with a Lower Value than the Funeral Costs

If the death registration shows that the value of the estate does not exceed the liabilities, in particular the funeral costs, the court terminates the probate proceedings by resolution as so-called “assets of the estate in lieu of payment”.

The court usually leaves the existing estate to the person who paid for the funeral in lieu of payment and authorizes them by resolution to dispose of the estate (regardless of whether they are entitled to inherit).

Summons to Creditors

The purpose of the summons to creditors is to provide the heir or the estate curator with an overview of the debts.

The court requests the creditors by means of an edict to register their claims within a certain period. The heir satisfies claims registered in due time, takes known claims into account even without registration and fulfils late claims only if there are still assets of the estate after the distribution.

Missing Heirs and Their Determination

Unknown Heirs

If the heirs are completely unknown, the court commissioner issues an heir edict and requests the unknown heirs to assert their claims within six months.
The service is carried out by public announcement in the edict file.

If, despite all efforts, no heirs can be found, the Republic of Austria can apply as a last resort for the grant of probate of the estate, which then becomes “escheated”.

Known Heirs with Unknown Whereabouts

If heirs are known, but their whereabouts are not, the court appoints an heir curator and also issues an heir edict.

If the court commissioner cannot locate an heir within the six-month period despite all efforts, he continues the proceedings together with the remaining heirs and the heir curator, so that the settlement takes place without delay. After completion of the probate proceedings, the parties involved continue to carefully preserve the share attributable to the absent heir for him.

However, the heir curator is obliged to make further inquiries. His activity is only finished when

Costs

In the case of the costs of probate proceedings, a distinction must be made between two fees:

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