Probate in Austria: The Estate Proceedings (Verlassenschaftsverfahren)

Upon a person’s death, the assets do not pass directly to the heirs. Upon death, the estate (Verlassenschaft) continues the legal position of the deceased as a legal entity (§ 546 ABGB). No one may take possession of an inheritance on his or her own authority; as a rule, the inheritance is acquired after completion of the probate proceedings through the Einantwortung, i.e. the transfer of the estate into the legal possession of the heirs (§ 797 para 1 ABGB). Until then, the estate itself holds the rights and obligations of the deceased.

Course of the Probate Proceedings

Record of Death by the Court Commissioner

Probate proceedings must be initiated ex officio as soon as a death becomes known through a public document or otherwise beyond doubt (§ 143 para 1 AußStrG). A notary acts as court commissioner (Gerichtskommissär) and prepares the record of death (Todesfallaufnahme); for this purpose, he ascertains all circumstances required for the proceedings, in particular the assets with rights and liabilities, testamentary dispositions and the statutory and testamentary heirs (§ 145 AußStrG).

Small Estates

If there are no assets or their value does not exceed EUR 5,000, or if succession occurs by operation of law under the applicable law, and no entries in public registers are required, the proceedings are not conducted unless an application for their continuation is filed (§ 153 para 1 AußStrG). Where Austrian law governs the succession, the court may in this case, upon application, authorise those whose claims are substantiated by the file to take over the assets (§ 153 para 2 AußStrG).

Declaration of Succession

Anyone who wishes to acquire an inheritance must prove the legal title to the court and expressly declare that he or she accepts the inheritance (§ 799 ABGB). The declaration of succession may be made unconditionally or conditionally, i.e. subject to the preparation of an inventory (§ 800 ABGB). Liability depends on this choice: after an unconditional declaration, the heir is personally liable to creditors and legatees even if the estate is insufficient (§ 801 ABGB); after a conditional declaration, the heir is liable only to the extent of the estate (§ 802 ABGB). Further details can be found under Declaration of Succession and Inheritance.

Administration and Representation of the Estate

An heir who sufficiently establishes his or her right of succession may use, manage and represent the estate unless the court orders otherwise; several heirs act jointly. Disposals outside the ordinary course of business require the approval of the probate court (§ 810 ABGB).

Inventory and Creditors

For inclusion in the inventory, possession on the date of death is primarily decisive (RIS-Justiz RS0122722; most recently OGH June 25, 2024, 2 Ob 85/24z). The probate court does not decide on ownership of individual items (RIS-Justiz RS0121985). To establish the level of debts, the heir or the estate curator may apply for all creditors to be called upon by public notice to register their claims within a reasonable period (§ 813 ABGB).

Einantwortung

With the Einantwortung, the estate is transferred into the legal possession of the heirs (§ 797 para 1 ABGB). The Einantwortung decision is also the basis for registering the heirs in the land register; see the notes on the separate copy pursuant to § 178 para 4 second sentence AußStrG under Declaration of Succession and Inheritance.

When Disputes Arise

If several persons file conflicting declarations of succession, the right of succession is determined in separate proceedings (§§ 160 f AußStrG). How such proceedings work and which time limits apply is explained under Inheritance Disputes and Contesting a Will.

Estates with an International Dimension

If the deceased had his or her habitual residence abroad or assets in several countries, the European Succession Regulation determines which law applies and which courts have jurisdiction. See Applicable Law.

Frequently Asked Questions

Who conducts the probate proceedings?

The district court (Bezirksgericht) has subject-matter jurisdiction (§ 104a JN); territorial jurisdiction lies with the court in whose district the deceased had his or her general place of jurisdiction in contentious matters (§ 105 para 1 JN). Most procedural steps are taken by a notary acting as court commissioner.

How long do probate proceedings take?

This cannot be answered in general terms. The duration depends above all on whether an inventory must be prepared, whether real estate or businesses are involved, whether foreign assets are affected and whether the right of succession is disputed.

May the heirs dispose of the estate before the Einantwortung?

Only to a limited extent. The heir who sufficiently establishes his or her right of succession may manage and represent the estate; disposals outside the ordinary course of business require court approval (§ 810 ABGB).