Declaration of death
The death declaration is a judicial decision of a local court , according to which a person is to be regarded as deceased before the legal system .
The legal basis for declaring death in Germany is the Absence Act (VerschG) and in Austria the Declaration of Death Act (TEG), both of which are based on the "Reich Law on Disappearance, Declaration of Death and Determination of the Time of Death of July 4, 1939" and are largely identical in content . For disputes on declarations of death, the procedure of voluntary jurisdiction ( Section 48 (1) FamFG , Section 13 VerschG) is to be used in Germany and the non-litigation procedure in Austria .
Presumption of death
As a rule, the death of a person is recorded on the death certificate . However, the death of missing persons cannot be proven with certainty. As the time of disappearance progresses, however, the presumption of death increases; the declaration of death confirms this assumption.
What is missing is the person whose whereabouts are unknown for a longer period of time without any information being available as to whether he was still alive or died during this period, provided that the circumstances give rise to serious doubts about his continued existence ( Section 1 (1) of the VerschG). If no news can be obtained about the fate of the person concerned, then this justifies the assumption of a lack of news within the meaning of the VerschG only if news would have been expected according to the current situation. This requires a closer examination, especially in the case of a possible “getting out” or “hiding” of the person concerned. The person whose death is not in doubt under the circumstances is not missing ( Section 1 (2) VerschG).
If a declaration of death is inadmissible for this reason, but no entry is made in the death register , an application can be made to determine the death and the time of death by court order. The legal capacity is not terminated by a declaration of death, however, it justifies a rebuttable presumption of the occurrence of death (§ 9 Abs. 1 VerschG). The German courts are responsible for declarations of death and procedures for determining the time of death (Section 12 (1) VerschG).
With declaration of death in Austria can probate proceedings begin. However, if the declaration of death was wrong, the declaration of death must be canceled. Then it is grossly unreasonable to continue the probate proceedings even though the testator is still alive.
- Law on disappearance, the declaration of death and the determination of the time of death on juris.de
- Death Declaration Act 1950 on ris.bka.gv.at