Inheritance Claim

An inheritance claim (also called Erbklage) is used to have uncertain or disputed inheritance claims clarified in court.

What is an Inheritance Claim?

An inheritance claim § 823 ABGB (also called Erbklage) is used to have uncertain or disputed inheritance claims clarified in court. The claim becomes relevant if others claim that you are not entitled to a share, or if you have to sue for your compulsory portion.

The plaintiff can only become active after the court has carried out the Einantwortung (transfer of estate to the heirs) and formally handed over the estate.

Timing of the Inheritance Claim

The inheritance claim is used after the Einantwortung has taken place. A correction of the inheritance claim is then only possible via a lawsuit, no longer in non-contentious proceedings.

Exemplary situations:

• A legal heir was ignored.
• A will is found only after the Einantwortung.
• The will used was invalid or challenged.

Peter Harlander
Harlander & Partner Rechtsanwälte „Wer nachträglich ein Testament findet oder im Verfahren übergangen wurde, kann mit der Erbschaftsklage sein Recht einfordern.“

Who is Entitled to Bring an Inheritance Claim?

Actively Legitimized: who is Entitled to Sue?

Anyone who wants to file an inheritance claim must prove a better right of inheritance than the heirs already appointed. This applies, for example, to persons who are legally intended as heirs but were not taken into account in the proceedings. This also applies if the person did not say anything in the original inheritance proceedings.

No Entitlement to an Inheritance Claim: who is not Allowed to Sue?

• Legatees
• Creditors of the estate

Passively Legitimized: against whom is the Claim Directed?

• The appointed heir(s)
• Buyer of the inheritance
• Universal successor of the apparent heir

Cannot be Sued:

• Legatees
• Individuals with singular acquisition from the estate (these are to be sued with separate lawsuits, e.g. action for recovery of property)

In such cases, another form of action is necessary, e.g. an action for recovery of property.

Process of the Inheritance Claim Procedure

We would be happy to represent you in the enforcement and defense of an inheritance claim. A common course of an inheritance claim is as follows:

Mandate & Review

• Viewing of all documents (will, estate file)
• Initial legal assessment

Filing of the Lawsuit

• Preparation of the statement of claim
• Service to defendants

Counter-argument & Taking of Evidence

• Submissions from the opposing party
• Examination of witnesses, expert opinions

Negotiation & Judgment

• Court hearing before the district or regional court
• Judgment on your inheritance claim

Legal Remedies (if Necessary)

• Appeal or revision

Burden of Proof in an Inheritance Claim: who Has to Prove What?

The plaintiff must conclusively prove his own better right of inheritance.

The proof includes, in particular, valid wills, birth certificates (in the case of legal inheritance) as well as evidence of grounds for exclusion or invalidity.

Legal Consequence of a Successful Inheritance Claim

If the inheritance claim is granted, the court acknowledges that the plaintiff is entitled to a better right of inheritance. The originally appointed heir loses his claim to the inheritance in whole or in part as a result.

If unauthorized heirs have already sold, consumed or otherwise made estate assets inaccessible, the inheritance claimant may additionally demand money. This monetary claim exists in addition to the claim for surrender of the inheritance.

Likewise, the inheritance claim can be noted in the land register if real estate is located in the estate. As a result, the claim also applies to persons who acquire rights to the property after this entry

Deadlines, Costs and Fees

Deadline for Claims:

• In principle, years from knowledge of the better right of inheritance
• otherwise 30 years from the death of the testator

Important: Anyone who waits too long may lose their claim. Legal advice helps to calculate and observe deadlines correctly.

Costs:

The costs of an inheritance claim are made up of court fees, attorney’s fees and any notary fees

Sebastian Riedlmair
Harlander & Partner Attorneys „Wer sein Erbrecht durchsetzen will, sollte rasch handeln. Eine Erbschaftsklage kann den entscheidenden Unterschied machen“

FAQ – Frequently Asked Questions