Inheritance in Austria: Probate and Cross-Border Estates

If someone dies in Austria, or an estate includes assets in more than one country, it is important to understand which law applies and how the Austrian probate process works. The deceased person's last habitual residence is generally more important than their nationality.

In brief

• Under the EU Succession Regulation (Europäische Erbrechtsverordnung), the deceased person's last habitual residence generally determines which country's courts and law are competent.
• In Austria, probate is conducted by a notary acting as a court-appointed commissioner (Gerichtskommissär).
• The compulsory share is always half of the statutory inheritance share and is a monetary claim.
• Austria has no inheritance or gift tax, but real estate is subject to real estate transfer tax (Grunderwerbsteuer).
• Inheritance can transfer not only assets but also debts.

Which country's law applies to a cross-border estate?

Since 17 August, the EU Succession Regulation (Europäische Erbrechtsverordnung) has governed cross-border inheritance matters. It applies in all EU Member States except Ireland and Denmark, including Austria.

The key question is the deceased person's habitual residence (gewöhnlicher Aufenthalt) at the time of death. In simple terms, this is usually where the person's family and social centre was located. The duration and regularity of the person's stay are also relevant.

If a person lives and dies in Austria, Austrian courts will generally handle the case under Austrian law. The competent court decides on the entire movable and immovable estate, regardless of where the assets are located. An overseas property is therefore not automatically excluded from Austrian law and proceedings.

Choice of law

In a will, the deceased can choose the law of the country whose nationality they hold either when making the choice or at the time of death. The formal requirements for a testamentary disposition must be observed.

If a person chooses the law of their country of nationality, the heirs may be able to agree on the courts of that country instead of the courts of the country of residence. Existing valid wills are not made invalid by the Regulation, but they should be reviewed where there is a foreign connection.

Who inherits without a will?

Without a will, statutory succession (gesetzliche Erbfolge) applies. The spouse or registered partner and the closest relatives inherit. Relatives are divided into four groups (Parentel):

• First group: children and their descendants, including grandchildren and great-grandchildren.
• Second group: parents and their descendants, including siblings, nieces and nephews.
• Third group: grandparents and their descendants, including uncles, aunts and cousins.
• Fourth group: great-grandparents, but not their descendants.

A later group inherits only if nobody exists in the preceding group. The spouse's share depends on which relatives inherit alongside them.

The spouse or registered partner also receives the statutory preferential legacy (gesetzliches Vorausvermächtnis). This includes the household contents and, if the home belonged to the deceased, the right to remain living there. This entitlement applies only while the marriage or registered partnership exists.

A cohabiting partner (Lebensgefährte) receives a statutory legacy if they lived in the same household with the deceased for at least three years. This right ends one year after the death.

How much is the compulsory share?

The descendants and the spouse or registered partner are entitled to a compulsory share (Pflichtteil). This is not a claim to specific assets, but a monetary claim against the heirs.

• Amount: half of the statutory inheritance share.
• Calculation basis: the net estate after debts and procedural costs.
• When it can be claimed: one year after the death.
• Deferral (Stundung): a court can grant a deferral for 5 years, or in special cases for a maximum of 10 years, with annual interest of 4%.
• Limitation period: 3 years from learning the relevant facts, and at the latest 30 years.

Gifts made to third parties during the two years before the deceased's death may be added to the estate at the request of the person entitled to the compulsory share.

How does the Austrian probate process work?

1. The registry office (Standesamt) sends the death certificate to the district court (Bezirksgericht) for the deceased's last place of residence.
2. The court appoints a notary. The notary invites relatives to the death report meeting (Todesfallaufnahme). Not every heir has to attend.
3. The notary checks the central will registers.
4. The heirs submit a declaration of acceptance of inheritance (Erbantrittserklärung), either unconditionally or conditionally. With a conditional declaration, liability for debts is limited to the value of the estate.
5. The proceedings end with the inheritance transfer order (Einantwortungsbeschluss), which records who inherits and in what shares. A finality certificate must be presented for registration in the land register.

If the estate's active assets do not exceed 5,000 euros and no land-register entry is required, the probate hearing is omitted. If the assets do not cover the debts, such as funeral costs, the court will generally transfer the assets to the person who paid for the funeral.

Renunciation of the inheritance (Erbausschlagung) is always possible. Notaries are not subject to general deadlines, but they must follow the court's instructions.

What forms of will are available?

• Handwritten will (eigenhändige Verfügung): the entire text must be written by hand and signed at the end. No witnesses are required.
• Allographic will (fremdhändige Verfügung): it may be typed, but it requires the testator's handwritten signature, a handwritten statement and three witnesses.
• Emergency oral will: possible only in an immediate danger to life, before two witnesses, and valid for only three months after the danger has passed.
• Inheritance contract (Erbvertrag): available between spouses and registered partners, in a notarial deed, and covering no more than three-quarters of the estate.

Taxes and debts

Is inheritance tax payable in Austria?

No. Austria has no inheritance or gift tax. However, inheriting real estate is subject to real estate transfer tax (Grunderwerbsteuer). The EU Succession Regulation does not govern taxation. For real estate, the country where the property is located generally determines the tax treatment.

Do debts pass to the heirs?

Yes. Debts also pass to the heirs through the declaration of acceptance of inheritance. With a conditional declaration, liability is limited to the value of the estate.

Where can you get initial legal information?

The first legal information is free at every Austrian notary's office. Bar associations also offer a free initial orientation consultation (Erste Anwaltliche Auskunft).

Practical steps

1. Establish the deceased person's last habitual residence at the time of death.
2. Collect the death certificate, information about assets and debts, and any existing wills.
3. Wait for the relevant Bezirksgericht to appoint a notary as Gerichtskommissär.
4. Attend the Todesfallaufnahme if invited and provide complete information about the estate.
5. Before making an unconditional Erbantrittserklärung, check the estate carefully for debts.
6. Obtain legal advice if the estate involves real estate, assets in another country, a will, compulsory-share claims or significant debts.

Important: This article is general information and is not legal advice. Seek advice from a lawyer, notary or other qualified professional for an individual case.

Source: oesterreich.gv.at