Key Terms in Austrian Inheritance Law and Probate Proceedings

When a person (natural person) dies, it must be determined to whom the deceased's rights and obligations pass. Put simply, most proprietary legal positions (both active and passive) are capable of being inherited, provided they are not of a strictly personal nature. Public-law entitlements are generally not transferable.

Estate (Verlassenschaft)

The rights and liabilities of a deceased person, taken as a whole, are referred to as the estate (Verlassenschaft; formerly also Nachlass).

As a pool of assets, the estate comprises all assets and liabilities of the deceased at the time of death – including property, claims, rights and obligations. It constitutes a separate fund that initially remains distinct from the personal assets of the (future) heirs.

As a legal entity sui generis, the estate is recognised as having legal capacity under the prevailing doctrine and settled case law of the Supreme Court (OGH) for as long as it has not yet been distributed by court order. It thus serves as an important point of legal attribution in the period between the death and the vesting of the inheritance.

The estate comes into existence upon the death of the deceased and ceases to exist upon the order of distribution (Einantwortungsbeschluss), by which ownership of the estate assets passes to the heirs (section 797 ABGB). During this interim phase, the proceeding regarding the estate is administered by the court commissioner (Gerichtskommissär, a notary) in probate proceedings under the Non-Contentious Proceedings Act (AußStrG).

The Austrian system differs from German law precisely in this phase of the "dormant estate" (hereditas iacens) – under German law, the estate passes to the heirs directly upon death (section 1922 BGB), whereas in Austria, the heirs only acquire ownership by way of judicial distribution (Einantwortungsprinzip).

Deceased / Testator

In Austrian inheritance law, the deceased is most commonly referred to as the Verstorbene/r (deceased) or letztwillig Verfügende/r (person making a testamentary disposition); until the Inheritance Law Amendment Act 2015 (ErbRÄG 2015) and continuing at EU level (EU Succession Regulation), the term Erblasser (decedent) has been predominant.

A person who makes a will is also referred to as a testator.

Probate Proceedings and Distribution Order (Einantwortung)

Probate proceedings (Verlassenschaftsverfahren) are the court proceedings in which, following a person's death, the estate is identified, the heirs are determined and the assets are ultimately transferred to them. In Austria, such proceedings are mandatory for every death and are initiated ex officio by the competent district court (Bezirksgericht).

The starting point is the recording of the facts of death (Todesfallaufnahme): the court commissioner ascertains the personal and family circumstances of the deceased and determines whether a testamentary disposition exists.

In the course of the probate proceedings (Verlassenschaftsabhandlung), any person called to inherit – whether by statute, will or inheritance contract – may file a declaration of acceptance of the inheritance (Erbantrittserklärung), which may be conditional or unconditional.

On the basis of the declarations of acceptance, the court commissioner draws up the inventory – a schedule of all assets and liabilities of the estate. If the declarations are consistent with the statutory order of succession or a testamentary disposition and no disputes arise, the court issues the distribution order (Einantwortungsbeschluss). Only upon its becoming final and binding does ownership of the estate assets pass to the heirs.

Where disputes arise – for instance regarding the validity of a will or the amount of a compulsory share – the court will attempt to mediate a settlement. If this fails, the probate court refers the parties to civil litigation.

Heir and Right of Inheritance

The person entitled to inherit from a deceased is called an heir (Erbe; section 532 ABGB).

A person who has a right to take possession of the estate, or a defined share thereof, holds a right of inheritance (Erbrecht).

Legacy (Vermächtnis)

Where the deceased provides for a testamentary benefit to a person without appointing that person as heir, this is referred to as a legacy (Vermächtnis; formerly also Legat); the beneficiary is a legatee (Vermächtnisnehmer/in; formerly also Legatar/in; section 535 ABGB). A person to whom a legacy has been left is therefore not an heir but "merely" a legatee. Under very limited circumstances, however, a legatee may also become an heir.

Compulsory Share (Pflichtteil)

Certain persons may have an inalienable (though waivable) minimum entitlement to a defined share of the estate following the death of the deceased (the so-called compulsory share, Pflichtteil). Persons holding such a claim are referred to as forced heirs (Pflichtteilsberechtigte).