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).
An overview of the entire process from death to the Einantwortung can be found under Probate in Austria. Conflicting declarations of succession are dealt with under Inheritance Disputes.
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, a Declaration of Acceptance based on such a will cannot lead to a grant of probate (cf. OGH, March 25, 2025, 2 Ob 3/25t).
A declaration of acceptance which, on the declarant’s own submissions and without any examination of disputed facts, cannot lead to a grant of probate is to be dismissed without opening proceedings on the right of inheritance. Such proceedings under §§ 160 et seq. AußStrG require conflicting declarations of acceptance that are each at least conclusive. A person who does not even conclusively assert a title to inherit under § 799 ABGB is not to be involved any further in the probate proceedings (OGH 28 July 2026, 2 Ob 98/26i [paras 27, 29, 33]).
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).
Conversely, party status ends with the proceedings on the right of inheritance: a claimant who is unsuccessful in those proceedings loses their status as a party to the probate proceedings. Relying on being a legatee under the will held to be valid does not assist them, because a legatee who is not entitled to protective measures has only the role of a creditor in probate proceedings. Party status then exists solely in so far as they exercise their creditor rights under §§ 811, 812 and 815 ABGB, or where their property rights are otherwise directly affected (OGH 23 June 2026, 2 Ob 96/26w [para 5]).
Procedural Orders Cannot Be Challenged Separately
Not every decision of the probate court can be challenged immediately. Where the court dismisses an application to open proceedings on the right of inheritance under §§ 160 et seq. AußStrG, that decision concerns only the conduct of the further proceedings. It is therefore a procedural order which, under the second sentence of § 45 AußStrG, cannot be challenged separately; the matter itself is decided only upon the grant of probate. Review is confined to a single appeal, namely the appeal against the decision on the substance (OGH 19 May 2026, 2 Ob 70/26x [paras 12 f]).
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.
The Estate Curator
Where the estate is unrepresented because no declarations of acceptance have been filed and urgent acts of representation are required, the court appoints an estate curator (Verlassenschaftskurator). At the latest upon that appointment becoming formally final, or provisionally binding under § 44 AußStrG, the power of representation of heirs who have filed a declaration of acceptance ends by operation of law. If the curator is later discharged, the question whether the appointment was justified is of merely theoretical significance; the grievance required for an appeal is then lacking. Nor do the cost consequences establish such a grievance, because the curator claim to remuneration and reimbursement of expenses under § 283 ABGB survives even if the order of appointment is subsequently varied or set aside (OGH 28 April 2026, 2 Ob 50/26f [paras 10, 12 et seq.]).
Access to Adult Protection Court Files
Where doubts arise as to the deceased legal or testamentary capacity, the second sentence of § 141 para 1 AußStrG grants heirs and persons who have filed a declaration of acceptance access to the health-related parts of an adult protection court file, so that the true and uninfluenced will of the deceased may prevail after death. The applicant must, however, set out what kind of health-related information is of interest and why it is material for that purpose. There is no unrestricted right of access to the entire file: parts of the file with no discernible connection to the mental condition of the deceased, such as information on the activities of a person holding an advance power of attorney, are not covered (OGH 27 May 2026, 1 Ob 68/26w [paras 5 f]).
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).
Where ownership of real property is to be registered in the land register (Grundbuch) on the basis of the grant of probate, the application must be accompanied by the separate copy of the decree of inheritance which, since the Land Register Amendment 2024, the probate court prepares of its own motion (§ 178 para 4 second sentence AußStrG). Only this separate copy may be included in the publicly accessible collection of deeds (§ 6c para 2 GUG). The ordinary copy of the decree does not suffice even if its content would be identical; the land register court is not permitted to make such a comparison (OGH 30 July 2026, 5 Ob 35/26x [paras 19 f]).
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.