Around the topic of inheritance there are always questions of doubt or half-truths that can lead to uncertainty. Some such questions are briefly addressed below:
I write my will on the computer myself and sign it. Because I have signed it, it is effective and binding.
A will written on a computer or typewriter or also by a third party is a so-called handwritten will. This requires the handwritten signature of the testator in order to be valid. In addition, the testator must add a handwritten addition stating that this document contains his or her last will and testament. Furthermore, three witnesses must be present at the same time and sign in their own hand. The deed must also clearly indicate the witness status. Deviations exist for emergency wills.
The above statement is therefore incorrect. The will written and signed by oneself on the computer is invalid.
If I make a will in front of witnesses, they know what is in my will.
Apart from the fact that witnesses to wills are usually already professionally bound to secrecy, they do not have to know the contents of the testamentary disposition. It is not necessary for the written will to be read aloud.
Registering my will makes no sense. That’s just unnecessary costs.
In order for a will (or any other testamentary disposition) to actually be enforced, it is necessary that it be kept professionally and properly (usually in its own safe). Otherwise, there is a risk that the will will not be found or could be destroyed (albeit unlawfully). Registering the will ensures that it is known in probate proceedings that there is a will. The content of the will itself is not registered.
The compulsory portion only relates to the estate. I.e. if I give something away during my lifetime, this is not relevant for the compulsory portion.
Gifts inter vivos may very well be subject to additions or offsets with regard to the calculation of the compulsory portion. Since the value of gifts is to be extrapolated to the time of death according to a consumer price index, this can also lead to unpleasant surprises.
If I give something to my child, the others won’t know.
Beneficiaries of the compulsory portion have a claim to information against the estate and gift recipients. This claim to information can also be enforced in court through a manifestation action.
If I have no contact with my child, he or she has no right of inheritance and certainly no compulsory portion.
The legal right to inherit exists irrespective of whether there has been contact with the descendant or not. Under certain (albeit very strict) conditions, however, there may be a disinheritance or disinheritance. The compulsory portion can be withdrawn from a person entitled to a compulsory portion if he or she has committed a judicially punishable act against the deceased, which can only be committed intentionally and is punishable by more than one year’s imprisonment. For further grounds of unworthiness to inherit, see the chapter on the right to a compulsory portion.
If the deceased and the beneficiary of the compulsory portion did not have a close relationship at any time or at least not for a longer period of time before the death of the testator, as it usually exists in the family between relatives, the deceased may reduce the compulsory portion to half. For the reduction of the compulsory portion, however, a corresponding testamentary disposition of the deceased is also necessary.
Cohabiting partners are treated the same as spouses.
In some areas of law, there is indeed equality between partner (Lebensgefährte)s and spouses. However, this is not the case in the area of inheritance law. A partner does not belong to the circle of legal heirs. Only under very limited circumstances can the partner (Lebensgefährte) have an extraordinary right of inheritance. An entry into the main tenancy agreement for a flat by the partner (Lebensgefährte) is possible if the requirements of § 14 MRG are met. There is also a statutory advance bequest limited to one year.
In order to avoid the gifts to my child being subject to the addition to the compulsory portion (and my child as the gift recipient being liable for any shortfalls), my child simply waives the compulsory portion vis-à-vis me. He or she is thus no longer entitled to the compulsory portion and the relevant regulations are therefore no longer applicable to my child.
According to the legal situation after the ErbRÄG 2015, no specific entitlement to a compulsory portion of the gift recipient is required for a temporally unlimited addition. It is sufficient that the beneficiary of the compulsory portion belongs to the group of beneficiaries of the compulsory portion. Therefore, a waiver of the compulsory portion does not change the fact that the gifts during lifetime are to be added when calculating the compulsory portion claims of the other beneficiaries of the compulsory portion.
A renunciation of inheritance (Erbverzicht) also eliminates the appointment of an heir in a will.
This cannot be said in such general terms. A renunciation of inheritance can relate to all or only certain grounds for appeal. If only the statutory right of inheritance is waived, this does not include the appointment as heir by will or inheritance contract (OGH 10.9.2024, 2 Ob 117/24 f).