Probate proceedings

The probate process is a legal process in the Austrian inheritance law that the determination of the asset levels of probate and the transfer of ownership to the heirs serves. Unlike in Germany according to § 1922 BGB, the inheritance does not pass to the heir or heirs by law in Austria.

Jurisdiction

The probate proceedings are carried out by the district courts and are regulated in the Non-Disputes Act. For the most part, it is handled by a public notary as a court commissioner ; the court decisions are in the form of decisions (such as the decision on the right of inheritance or the decision to Einantwortung reserved). Since January 1, 2005, the court commissioner has been given even more tasks due to a comprehensive amendment to the Non-Disputes Act and can now conduct the proceedings largely independently.

Preliminary proceedings

If the civil status authority learns of the death of a person, it sends the death certificate to the probate court (district court in whose district the deceased was domiciled). This creates an act of inheritance and transmits it to the responsible notary as court commissioner.

The first stage of the procedure, the so - called preliminary procedure, has above all the admission of deaths (earlier admission of deaths ), that is the recording of the data of the deceased, the existence of relatives entitled to inherit, testamentary dispositions , of assets and / or debts, as well as the assumption of these possible testamentary dispositions by the Court commissioner on the subject (Section 145 AusStrG).

With regard to the estate, the court commissioner can set orders (e.g. opening a bank safe) and security measures and the court commissioner can release the costs for a simple burial (Section 148 AustrG) Creditor claims can be reported to the court commissioner or the probate court, but also to the court be sued.

Inheritance treatise

This is followed by the actual inheritance treatise . The heirs are asked to submit a declaration of inheritance (i.e. to explain whether and how they want to accept or reject the inheritance ) and to indicate their right of inheritance (by indicating whether they are based on legal succession , a will or an inheritance contract ).

In the case of an unconditional declaration of inheritance, the heir assumes unlimited liability for debts of the testator, even if these exceed the value of the assets of the estate. Thus, the heir also risks over-indebtedness of the estate or the existence of unknown liabilities. (§ 801 ABGB)

In the case of the conditional declaration of inheritance, he is only liable for debts up to the amount that corresponds to the value of the estate (Section 802 ABGB). In the case of a conditional declaration of inheritance, an inventory must be drawn up in any case. This should include the assets and liabilities of the estate. The creditors of the estate are also to be summoned by the court through the appeal of the creditors. This is intended to provide an overview of the estate's debt level so that they know whether and up to what rate the debt can be serviced or whether they have to apply for insolvency proceedings on the estate. In any case, the heirs must satisfy the creditors in proportion to the amount of the claim.

Dispute over inheritance law

If several people make contradicting statements, the court commissioner must first try to reach an agreement. If this does not succeed, the court has to determine the right of inheritance of the beneficiaries after an oral hearing with a resolution and reject the other declarations of inheritance after an evidence procedure that is carried out in the context of the probate hearing.

The testator can testify that the dispute over the law of inheritance has to take place before an arbitral tribunal. This does not apply to the execution of the probate procedure.

The heirs and legatees also have the option of settling disputes about the entitlement to inheritance and the interpretation of the will by means of a settlement or of regulating the division of assets through an inheritance agreement differently than attested or provided by law.

Parties in inheritance proceedings are the heirs. Persons entitled to a compulsory portion only have the status of a participant, legatees are only informed of their claims without being involved in the proceedings.

Completion of probate proceedings

The probate proceedings shall normally end with the Einantwortung , entering through the heir to all rights and obligations of the testator (possibly depending on the type of the votes Erbantrittserklärung only to the extent of the probate assets).

Since the procedure described is a very complex procedure, there are special provisions in the event that the estate is only very small and overindebted, according to which the assets of the estate are left to the creditors in lieu of payment (after the end of 2004 old non-dispute law called iure crediti responsibility ). With a larger capacity one can discount bankruptcy are performed. If assets are available, the funeral costs are to be reimbursed as a priority.

If there are no assets of the estate or if they do not exceed the value of 5,000 euros and no entries are required in public books ( land register , commercial register ), the treatise is omitted if no application is made (according to the old non-dispute law, one spoke of abhorrence for the sake of poverty the new non-dispute law speaks of omission of the treatise ).

Subsequent assertion of inheritance claims

Even after completion of the probate proceedings, the “true heir” can assert his claim against a “false heir” (= false heir) with the inheritance action. This is the case when a younger, valid will comes to light after being given the answer, favoring the “true heir” instead of the sham heir - to whom the court answered the probate. Since the apparent heir had no subjective right of inheritance, he never became the owner of the estate. From knowledge of the later will, a limitation period of three years applies to the inheritance action, but no longer than 30 years from the death of the testator.

If additional assets of the testator are found after the heirs have given their responsibility, the court commissioner must notify the parties thereof. The inventory must be completed or the heirs must be asked to complete their declaration of assets. As a rule, it is not necessary to supplement the decision on authorization (Section 183 Foreign Trade Act). The heirs are entitled to divide the assets according to their inheritance quotas by giving them responsibility.

literature

Walter Buchegger among others: Practical civil procedural law. Knowledge and inheritance proceedings in 100 cases (= Linz University publications . Study texts . Vol. 2). Springer, New York 1988, ISBN 0-387-82093-0 .

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 .