Declaration of acceptance
In order to achieve the inheritance, it is necessary for the heir(s) to expressly declare that they accept the inheritance. The law distinguishes between a conditional and an unconditional declaration of acceptance of inheritance (§ 800 ABGB).
The unconditional declaration of acceptance of inheritance means that the heir is personally liable to all creditors of the deceased for their claims and to all legatees for their legacies. The liability is therefore unlimited and relates to the heir’s entire assets. The heir is therefore liable not only for the assets taken over from the estate, but also beyond that. Several heirs are jointly and severally liable.
The simpler and faster handling of the probate proceedings when submitting an unconditional declaration of acceptance of inheritance is therefore offset by a not inconsiderable liability risk.
The situation is different if the heir only makes a conditional declaration of acceptance of inheritance. In this case, the heir’s liability is limited to the value of the assets of the estate that he has taken over. He is therefore only liable to a limited extent for his share of the estate and not jointly and severally with the other heirs.
The rights of the heir are not restricted when submitting a conditional declaration of acceptance of inheritance. He or she is therefore a full heir in the same way as if he or she submits an unconditional declaration of acceptance of inheritance. The probate proceedings may take a little longer if a conditional declaration of acceptance of inheritance is submitted, as creditors are called and an inventory is drawn up by the court commissioner. Assets may also have to be valued by the experts.
Where an absent heir is represented in probate proceedings by a court-appointed curator for absent persons (Abwesenheitskurator), the submission of a conditional declaration of acceptance of inheritance requires court approval from the guardianship court (pflegschaftsgerichtliche Genehmigung). This applies even where the declaration conflicts with a competing declaration submitted by another claimant to the estate — since such a conflict entails the risk of losing the inheritance dispute and the associated cost liability. If this approval has not been obtained, the probate proceedings cannot be properly continued. (OGH 2 Ob 226/22g [para. 5])
A heir is not obliged to accept the inheritance. He or she can also reject it (§ 805 ABGB). If the estate is overindebted, it can also be transferred to a creditor in lieu of payment.
Inheritance decision
The probate proceedings end with the distribution of the estate to the heirs. For this purpose, the competent court issues what is known as an inheritance decision (Einantwortung).
Upon the distribution of the estate (Einantwortung), the heirs become co-owners of the physical estate assets in proportion to their shares. For divisible estate claims – in particular monetary claims – the community of heirs is dissolved by operation of law: the claim splits upon the Einantwortung into independent partial claims pursuant to §§ 888 f ABGB, which each co-heir may assert directly and without the cooperation of the other co-heirs (OGH 2 Ob 59/23z [para. 42–45]). Estate assets in the form of a monetary claim held by the former court commissioner or a bank are therefore payable to each co-heir in the proportion of his or her share following the Einantwortung; no consent from the remaining co-heirs is required for payment.