Erbantrittserklärung und Einantwortung

Declaration of Acceptance and Grant of Probate: Probate Proceedings

To rightfully take possession of an estate, an explicit declaration to the court is required. Austrian law distinguishes fundamentally between two types of acceptance of inheritance pursuant to § 800 of the Austrian Civil Code (ABGB).

The Declaration of Acceptance of Inheritance

The Declaration of Acceptance (Erbantrittserklärung) is the formal act by which an heir accepts the inheritance. Whether this is done on the basis of intestate succession or a testamentary disposition has far-reaching consequences for personal liability.

It is essential to note that the window for filing a Declaration of Acceptance is not unlimited. Once the estate has been subject to a handover in lieu of payment (Überlassung an Zahlungsstatt) pursuant to § 154 of the Non-Contentious Proceedings Act (AußStrG), the probate proceedings are considered (provisionally) concluded. A Declaration of Acceptance filed after such a handover is only admissible under the very narrow requirements of § 183 para 1 AußStrG, as the handover in lieu of payment is legally equivalent to the final grant of probate (Supreme Court OGH, April 29, 2025, 2 Ob 4/25i). Furthermore, if a will exclusively contains legacies (bequests) without appointing a specific heir, any Declaration of Acceptance based on such a will must be rejected (OGH, March 25, 2025, 2 Ob 3/25t).

Where subsequently called heirs — for instance grandchildren stepping into the line of succession after children have disclaimed — fail to submit a declaration of acceptance within the period set by the probate court, this does not constitute a final disclaimer. Under § 157 para. 2 AußStrG they are treated as having disclaimed only provisionally and may, as a rule, still make a declaration prior to the formal transfer of the estate (OGH, 20 January 2026, 2 Ob 184/25k [para. 16]).

Practice Tip:

Missing the court-imposed deadline for submitting a declaration of acceptance is not a permanent loss of rights. A declaration remains possible until the estate is formally transferred. That said, prompt action is strongly advisable: delay prolongs the probate proceedings and may lead to an unintended weakening of one’s legal position (OGH, 20 January 2026, 2 Ob 184/25k [para. 16]).

Furthermore, probate proceedings require a concrete legal relationship to the estate for party status and the right to appeal. Anyone who has not yet filed a Declaration of Acceptance is not considered a formal participant in the proceedings and therefore lacks both party status and the right to appeal (OGH, April 29, 2025, 2 Ob 49/25g). This applies even if an individual has a merely economic interest in the outcome: such interest alone does not establish party status (OGH, April 29, 2025, 2 Ob 68/25a). Similarly, a son who has failed to file a Declaration of Acceptance lacks the necessary legal grievance (Beschwer) for an appeal, even if he seeks judicial authorization under § 153 para 2 AußStrG (OGH, June 3, 2025, 2 Ob 18/25y).

Unconditional Declaration: Full Liability

An unconditional Declaration of Acceptance leads to the heir being personally and unrestrictedly liable for all debts of the deceased as well as all legacies. This means the heir is liable not only with the inherited assets but also with their entire private assets. If there are several heirs, they are subject to joint and several liability.

Conditional Declaration: Protection of Private Assets

With a conditional Declaration of Acceptance, the heir is only liable up to the value of the assets of the estate. Liability is further limited to the heir’s respective inheritance quota. To ensure this protection, the court commissioner (notary) prepares an inventory and, if necessary, valuation reports.

Important: The heir’s rights remain fully intact with a conditional declaration. The process only takes slightly longer due to the inventory. For absent heirs or minors, a conditional declaration is often legally required to minimize risks (e.g., in an inheritance dispute; cf. OGH 2 Ob 226/22g).

Furthermore, heirs are not obliged to accept the inheritance. They may disclaim the inheritance pursuant to § 805 ABGB, which is particularly advisable in the case of an over-indebted estate.

Administration of the Estate

The estate in abeyance (ruhender Nachlass) is generally administered by the heirs who have filed a Declaration of Acceptance (provided there are no conflicting declarations). However, measures outside the ordinary course of business require judicial approval. In its decision 2 Ob 203/24b (March 25, 2025) on estate administration pursuant to § 810 ABGB, the Supreme Court clarified the distinction between ordinary and extraordinary business: The closing of bank accounts/depots prior to the grant of probate constitutes an act of extraordinary administration requiring judicial approval.

Grant of Probate and Inheritance Decree

The probate proceedings formally conclude with the Grant of Probate (Einantwortung). For this purpose, the competent district court issues a so-called Decree of Inheritance (Einantwortungsbeschluss).

Once this decree becomes final, rights and obligations officially pass to the heirs:

  • Physical Objects: The heirs become co-owners according to their inheritance shares (relevant for real estate and land).
  • Monetary Claims: By operation of law, these split into independent partial claims (§§ 888 f ABGB). Each co-heir can therefore assert their share of bank balances directly and without the consent of the other co-heirs (OGH 2 Ob 59/23z).

The Declaration of Acceptance is initially a procedural act: its substantive legal effects do not take place upon filing, but only upon the Grant of Probate (OGH, June 3, 2025, 2 Ob 84/25d). Until the grant of probate, the heir has party status in the probate proceedings, but the actual succession of ownership only occurs with the final decree.

Further explanations of legal procedures can also be found in our Legal Glossary.