How Do You Wish to Make Provisions for your Demise?

Have you specified who should inherit your estate?

Have you made provisions for who should inherit if you and your family were to pass away simultaneously, for example, in a car accident?

Are there individuals in the statutory line of succession whom you wish to exclude in any event?

Do you wish to ensure that specific assets are transferred to particular individuals?

Do you want to prevent long-standing disputes among heirs?

Special Case Company

Have you designated who should succeed you in your business?

Can your heirs continue your business?

Would it perhaps be more sensible to transfer the business to business partners, conditional on a payout to the heirs?

The most Important Question

When do you wish to address these questions?

Whether there is “still time for that” is determined by chance. Tomorrow or in many years.

Now.

Draw up a will, settle your estate. Now.

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Will

If a testamentary disposition is to be made regarding the succession (i.e., who shall receive the assets after the testator’s death), it is referred to as a will. The testator can appoint a single person or several persons as heirs, in equal or different shares.

The will allows you to determine yourself who receives which part of your inheritance. Conversely, you can also disinherit potential heirs or reduce their share to the compulsory portion.

Who Requires a Will?

The topic of wills does not only concern older people. One in seven deaths occurs between the ages of 0 and 64. Therefore, you should draw up a will at the latest once you have started your own family.

The Right Time for a Will

Wills, advance directives, and living wills have one thing in common: All three are only needed on a specific day. Whoever misses that day has missed the chance for self-determination. Then the state determines what happens next.

A will can only be drawn up as long as the capacity to make decisions has not been lost. If you wish to determine who should make decisions in an emergency, now is the right moment for the first free step.

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General Requirements for Drawing up a Will

Testamentary capacity

In principle, anyone who has reached the age of 18 and is of sound mind can draw up a will.

Persons between 14 and 18 years of age can only make a will orally before a court or notarially, whereby the court or notary must be convinced that testamentary capacity exists.

Persons under the age of 14, individuals with mental incapacities, the mentally ill, and those whose free will is compromised for any other reason, such as severe intoxication, cannot execute a will.

Testamentary intent

To draw up a valid will, testamentary intent is required. The testator must therefore intend to draw up a will here and now. Such intent is lacking, for example, if the testator only creates a draft.

Contents of the Will

In principle, the testator is free to dispose of their assets as they wish and to whom they bequeath them. A restriction is only imposed here with regard to the protection of statutory heirs, i.e., the compulsory portion claims to be considered. By means of a will, the testator can, in addition to appointing heirs, also grant legacies (e.g., who should receive certain goods) or, in justified cases, order disinheritance or reductions of the compulsory portion.

Appointment of Heirs

In principle, the testator is free to appoint anyone as an heir to their estate. This does not necessarily have to be a statutory heir. However, the testator’s descendants and any spouse are entitled to a mandatory compulsory portion claim, which can only be reduced or entirely waived under certain conditions. To avoid lengthy and costly proceedings after the testator’s death, it is advisable to specifically regulate or consider such compulsory portion claims in advance.

Substitute Heirs

In the event that the appointed heir cannot inherit (e.g., because they do not survive the testator) or does not wish to (renunciation of the right of inheritance), the testator can designate a substitute heir.

Subsequent Heirs

The testator can designate a subsequent heir in the event that the appointed heir passes away. The subsequent inheritance can be for the remainder (the heir can therefore consume the inheritance during their lifetime). In this form, the subsequent heir only receives the remaining portion of the assets. However, if the first heir is only permitted to use the assets (e.g., only withdraw interest from a savings account) and not consume them, this constitutes a so-called fideicommissary substitution.

Bequest of a Legacy

In addition to appointing heirs, the testator can also leave specific assets from their estate to certain individuals in the will. This could be, for example, the testator’s business, a car, a painting, a specific sum of money, or other items.

Forms of Wills

Wills can be drawn up holographically or non-holographically. In addition, there are also oral and public testamentary dispositions.

Holographic Wills

For a holographic will, the entire text must be handwritten and signed by the testator, with the signature placed at the end of the text.

Non-holographic Wills

Non-holographic means that the will was not written by hand. Even someone who types their will personally on a computer creates a non-holographic will.

A non-holographic will can be written with a typewriter, a PC, or even handwritten by another person. Furthermore, a multi-page will must be bound in such a way that tampering is not possible.

Your handwritten signature with the handwritten addition “This is my last will” is required. This signature must be made in the presence of three witnesses, whose identity must be evident from the document. The three witnesses must also sign the will by hand at the end, with a handwritten addition indicating their witness capacity, such as “as requested testamentary witness”.

Note: Not everyone can be a witness. Persons under 18 years of age, the blind, the deaf, the mute, biased witnesses, and persons who do not understand the language in which the testamentary disposition was drafted are not eligible as witnesses. As a rule, close relatives or our office staff act as witnesses.

Oral Testamentary Disposition

If there is an immediate danger that the testator will lose testamentary capacity or die, it is possible to draw up a so-called emergency will. For this purpose, they can make a will orally or in writing by another person, in the presence of two competent witnesses. Here, minors who have reached the age of discretion are already permitted as witnesses. However, a will drawn up in this manner remains valid for a maximum of 3 months from the cessation of the imminent danger.

Note: A last will declared in this manner is only effective for a period of three months from the cessation of the danger.

Public Testamentary Disposition

In addition to the forms already mentioned, there is also the possibility of drawing up a will publicly, namely orally or in writing before a court or a notary. Oral declarations must be recorded in a protocol, and written ones deposited under seal.

Persons between 14 and 18 years of age can only make a will orally before a court or notarially, whereby the court or notary must be convinced that testamentary capacity exists.

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Revocation of a Will

The testator is, of course, free to revoke an existing will at any time. The testator cannot waive such a right of revocation through a corresponding clause.

Revocation can be express (formally valid in any will form) or implied (tacitly), for example, by destruction, striking out passages, or by drawing up a new will.

Note: The safest way is revocation in the form of a will!

Contesting a Testamentary Disposition

A testamentary disposition can be contested or challenged due to an error on the part of the testator.

Both relatives who are statutory heirs, as well as relatives or survivors who would be considered heirs through an earlier will, are entitled to contest if a demonstrable error occurred on the part of the testator.

Testament Registry

After drawing up the will, we register it in the Will Register of Austrian Lawyers. This ensures that in the event of death, the court commissioner is informed of the will and it is executed.

Important: Only the fact of the will’s creation is registered. The will is not scanned and is not accessible online; instead, it remains confidential with the lawyer. We store the wills securely in a bank safe.

Your Benefits with Legal Support

A will creates clarity – but only if it is formally valid, legally sound, and individually tailored. Without legal guidance, there is a risk of formal errors, contradictory provisions, or overlooked compulsory portion rights. The result is often disputes, delays, and costly proceedings.

With legal support, you benefit from:

• Legal certainty: We ensure that your will complies with all legal formal requirements.
• Individual solutions: Special family situations, business successions, or real estate assets require tailored succession planning.
• Compulsory portion review: We examine whether compulsory portion rights exist and how they can be appropriately considered or limited.
• Dispute avoidance: A clearly formulated, legally secured will prevents future conflicts among heirs.
• Secure storage: Upon request, we register your will in the Will Register of Austrian Lawyers and store it confidentially for you.

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Frequently Asked Questions – FAQ