Inheritance law (Austria)

from Wikipedia, the free encyclopedia

In Austria, subjective inheritance law refers to the right to acquire the entire estate or parts of it. The term “inheritance law” (in the objective sense) also denotes the sum of legal norms that deal with the transfer of a person's property after their death (deceased) to their legal successor. In Austria, inheritance law is mainly regulated in the General Civil Code and was fundamentally reformed when it came into force on January 1, 2017.

General Civil Code

In Austria, inheritance law is anchored in the general civil code. The right of inheritance as such is not guaranteed by the constitution. With the reform of inheritance law in 2015, the Austrian legislature fundamentally revised and modernized the provisions on inheritance law in the eighth chapter of the ABGB (§§ 531 - 858). The provisions came into force on January 1, 2017.

Origin of inheritance law

The heir acquires the right of inheritance with the death of the deceased (testator). The right of inheritance can also be inherited when the heir before Einantwortung in the estate itself dies (§§ 536f Civil Code). Anyone who is unworthy of inheritance is excluded from legal succession. The law names the deliberate thwarting of the last will or the attempt to do so (suppression of a will, forgery of a will) or judicial criminal acts against the testator or close relatives that can only be committed intentionally and with a prison sentence of more than one as reasons unworthy of inheritance Year are threatened. Furthermore, anyone who has caused the deceased serious suffering in a reprehensible manner or who has grossly neglected his duties arising from the relationship between parents and children is unworthy of inheritance. The deceased can forgive the heir for all reasons of unworthiness to inherit, whereby the unworthiness of inheritance is eliminated (§ 539ff ABGB).

Universal succession

With death, the deceased's assets, liabilities and other rights go away - unlike in Germany according to § 1922 BGB - not immediately to the heirs, but initially to the so-called "estate" as a legal person. The heirs acquire the assets and other legal position of the deceased only because of the so-called. Probate process , which is completed with the Einantwortung in the estate (§ 547 Civil Code).

Legal succession

If the deceased has made no or no valid will, the legal succession applies (§ 727ff ABGB). The assets of the deceased then pass to the legal heir or, if there are several legal heirs, the assets are transferred to them proportionally (co-ownership). The legal heirs of the deceased are the spouse or registered partner and the descendants of the deceased (children, grandchildren or great-grandchildren, 1st line). If none of these legal heirs exist at the time of death, the deceased's parents or their descendants inherit (2nd line), if there are no persons in this line either, the deceased's grandparents or their descendants inherit (3rd line) and ultimately, should there are no persons in the 3rd line either, the great-grandparents of the deceased (4th line, so-called inheritance limit) (§ 741 ABGB). If there are no heirs up to and including the great-grandparents, a possible partner of the deceased inherits according to the legal succession (§ 748 ABGB). Finally, if there is no partner and the deceased has not drawn up a will (will, legacy), the federal government (Republic of Austria) acquires the estate (so-called right of return) (§ 750 ABGB).

Inheritance quotas

If the deceased has several children, they acquire the estate in equal parts, for example two children each half, three children each one third (§ 732 ABGB). In addition to the children, the deceased's spouse inherits a third of the estate, in addition to the 2nd line (the parents of the deceased or their descendants), two-thirds and otherwise the entire estate (Section 744 ABGB). For example, if the deceased leaves two children and a spouse, each heir receives a third of the estate.

Willed Succession

The term “willed succession” refers to the succession based on all legal transactions with which the deceased can influence the distribution of his property after his death. The right to freely regulate the succession of property after death is called "testamentary freedom". The law names the following forms of arbitrary succession: will, legacy, gift in the event of death, inheritance contract.

testament

A will is a declaration drawn up personally by the deceased during the lifetime of the deceased, which a specific person appoints as heir after his death (Section 552 (2) ABGB). In order to be effective, the will, like other wills, requires a specific form (see formal requirements ). The appointment of the heir can be indefinite, in which case the heirs inherit in equal parts, or it can be determined, i.e. by setting a certain inheritance quota (§ 557f ABGB).

legacy

In contrast to the will, the legacy is a testamentary disposition that only affects individual objects of the estate, for example real estate, objects of value or even a sum of money (Section 535 ABGB). The legatee, that is the person to whom an item is to be assigned according to the will of the deceased, does not become the direct owner of this item at the time of the death of the deceased, but merely acquires a debt-law claim against the estate or the heirs after acceptance into the estate (§ 649 ABGB).

Donation on death

A gift in the event of death is a contract concluded between the gift giver (during their lifetime) and the gift recipient, which must be concluded in the form of a notarial act, in which the gift giver gives the gift recipient an item in the event of death and waives the unjustified revocation of this gift (§ 603 ABGB).

Inheritance contract

An inheritance contract can only be concluded between a spouse or a registered partner or fiancée. The subject of the inheritance contract is the appointment (usually mutual) of one contracting party by the other. The inheritance contract is irrevocable and can only be dissolved again in accordance with contractual principles (§ 1249ff ABGB).

Formal requirements for wills

In contrast to most contracts, testamentary dispositions are subject to special formal requirements: In the case of wills and legacies, a distinction is made between handwritten and third-hand dispositions. Handwritten wills or legacies are those that the deceased himself wrote and signed during his lifetime, e.g. not using a computer or typewriter. Such last wills are formally valid without further requirements (§ 578 ABGB). Third-party dispositions, however, must be signed by the disposer in the presence of three witnesses who are present at the same time and additionally note on the testamentary disposition that it contains his last will (for example "This is my last will") (§ 579 ABGB). The witnesses must personally sign the will and indicate their capacity as witnesses (for example "as requested will witness"). The witnesses do not need to know the content of the last will (Section 579 ABGB).

Compulsory portion or emergency inheritance right

The right to a compulsory portion limits the testamentary freedom of the testamentary disposer. It stipulates that certain close relatives of the deceased should not be passed over and should receive a minimum share of the inheritance (so-called emergency heirs ).

The spouse or registered partner of the deceased and the descendants of the deceased, i.e. his children and grandchildren (Section 757 ABGB), are entitled to a compulsory portion.

The compulsory portion quota is half of the statutory quota, so that, for example, a child who would have an inheritance quota of 1/3 in the case of legal succession has a compulsory portion claim of 1/6.

Unlike the heirs, the beneficiaries of the compulsory portion do not acquire co-ownership of the inheritance, but have a contractual obligation against the estate or the heirs according to responsibility (Section 764 of the Austrian Civil Code). The entitlement to a compulsory portion becomes due upon the death of the deceased, but can only be claimed by those entitled to compulsory portion after one year, subject to statutory interest of 4%. A person entitled to a compulsory portion has to have everything credited to his compulsory portion that he has received from the deceased as inheritance, legacy or gift (also in the event of death) (Section 780 ABGB).

For the calculation of the compulsory portion, donations made by the deceased during his lifetime can also be taken into account. Donations to or transactions that are equivalent to a donation in terms of their economic content with persons entitled to a compulsory portion must be added to the calculation of the compulsory portion of the estate for an unlimited period of time (Section 781 ABGB). If, for example, the deceased gave away his or her essential assets to a person entitled to a compulsory portion during his lifetime, this does not reduce the compulsory portion claims of the other persons, but the value of the gift is added to the value of the estate and the compulsory portion is then calculated from this. Gifts to third parties who do not belong to the group of persons entitled to a compulsory portion are only added to the estate and increase the compulsory portions if they were made within two years before the death of the deceased (Section 782 of the Austrian Civil Code).

The ABGB grants the will-maker the opportunity to leave the compulsory portion “in the form of an inheritance or legacy or without express designation”. It is important here that the compulsory portion has to remain "completely free" for the emergency heir. It must not be provided with conditions, restrictions or encumbrances.

However, the testator can leave more than the legally required portion to the emergency heir . This more , but also only this, can be given conditions, restrictions or burdens. However, the testator can also, if he devotes more than the compulsory portion, order that the notary heir accepts the burden of the entire contribution. In this case, the person entitled to the compulsory portion only has the option of either accepting the larger legacy or the larger portion of the inheritance including the burden, etc., or rejecting it and demanding the purely compulsory portion in cash (see above).

But it also often happens that the donation to a person entitled to a compulsory portion is less than the statutory compulsory portion.

In such cases, the notary heir is entitled to request the addition to the statutory compulsory portion. He can accept the legacy arranged in his favor or the portion of the inheritance allocated to him and, in addition, demand the difference in monetary value to his compulsory portion.

Inheritance tax

The inheritance and gift tax expired in Austria on July 31, 2008 after the Austrian Constitutional Court had repealed them the previous year due to the non-equality assessment basis (unit values ​​for real estate) and the Austrian legislature had not decided on any succession. Since then, a tax burden on inheritance has resulted primarily from the real estate transfer tax when real estate is transferred from the deceased to his heirs.

literature

  • Peter Barth, Ulrich Pesendorfer: Practical handbook of the new inheritance law. Linde Verlag, Vienna 2016, ISBN 978-3-7073-3471-5 .
  • CMS Reich-Rohrwig Hainz (Ed.): Inheritance Law 2017, inherit correctly, avoid mistakes. Linde Verlag, Vienna 2016, ISBN 978-3-7073-3596-5 .
  • Astrid Deixler-Huebner, Martin Schauer: New Inheritance Law. LexisNexis Verlag, Vienna 2015, ISBN 978-3-7007-6353-6 .
  • Peter Apathy: Study Concept Civil Law VII - Inheritance Law . LexisNexis Verlag, Vienna 2015, ISBN 978-3-7007-6316-1 .
  • Bernhard Eccher: Civil Law: Volume VI Inheritance Law. 6th edition. Verlag Österreich, Vienna 2016, ISBN 978-3-7046-7609-2 .
  • Alexander Winkler: Inheritance Law - A Guide for Practice. Verlag Österreich, Vienna 2016, ISBN 978-3-7046-6578-2 .
  • Wolfgang Zankl: Inheritance Law: Text and Practice Handbook . Facultas, Vienna 2017, ISBN 978-3708915111 .

Web links

Individual evidence

  1. ↑ Heinz Barta et al .: Compulsory portion or Noterbrecht online textbook civil law, chap. 17 D, accessed September 7, 2018
  2. ↑ § 774 ABGB