A. Questions about the legal inheritance law of spouses and children, legal advance legacy
B. Questions about the inheritance law of partners and the care legacy
C. Questions about compulsory share law
D. Questions about the crediting of donations made by the testator during his lifetime
E. Questions about the validity of wills
F. Questions about inheritance law in connection with condominiums
Our father passed away without a will. Our mother had died earlier. Our father leaves us children. What is our inheritance rate under statutory inheritance law in Austria?
answer:
If there is no surviving spouse or registered partner, the Inheritance rate of children upon legal inheritance law in Austria That quota that corresponds to the number of children:
My spouse passed away without a will. He leaves behind me (his wife) and two children. What is the legal inheritance of me as a widow and those of my children?
answer:
The surviving spouse or registered partner has a statutory inheritance law by a third. The remaining two thirds are divided among the children by head: In this way, each of the two children also has an inheritance rate of one third each.
If there was only one child besides the surviving spouse, the inheritance rate of the only child would be two thirds.
If there were three children in addition to the surviving spouse, each of the children would have a legal inheritance rate of two ninths (2/3:3 = 2/9).
Additional question:
What does inheritance rate mean?
answer:
Inheritance rate means that each heir receives the deceased's assets in co-ownership in addition to the share of the inheritance quota. In an inheritance division agreement, the heirs can divide up the assets among themselves in such a way that individual heirs each receive sole ownership of certain property.
For some things, such as company shares or shares, there may be “co-ownership” of the shares/shares if a division of the shares/shares is not permitted under the articles of association or articles of association. In the case of residential property, the minimum share of residential property law can only be divided between two people, and in this case only half each (see in more detail in question 25).
My father (V) was widowed. He had three daughters, one of whom was alive at the time of his death; his other two daughters were predeceased. One of them left behind two children (i.e. grandchildren of V); the other previous deceased daughter had no children, but left her husband as her only legal heir. What is the legal inheritance situation after the deceased father?
answer:
The surviving daughter inherits half of the estate; the other half of the estate belongs to the previous deceased daughter, who is represented by her two children (= grandchildren of V); accordingly, the two grandchildren inherit 1/4 each.
The husband of the other predeceased daughter does not inherit anything after V because he is not descended from V.
In addition to me, my parents had adopted another child as their only biological child. Does this also have the right to inherit?
answer:
yes
I am an illegitimate child of my father. He also has legitimate children. As a child born out of wedlock, am I entitled to inherit after my father?
answer:
Yes; illegitimate children are treated as legitimate children under inheritance law.
My deceased husband died childless and leaves me as his wife and now widow. His parents are still alive. In his will, my husband had appointed me as the sole heir. However, it is doubtful whether the will is valid. Am I (the widow) now the sole heir, or do his parents also inherit or do they have compulsory share claims?
answer:
Depending on whether the will is valid or invalid, the answer must be differentiated:
When the final decision valid is, is the testamentary appointment of the wife as sole heir effective. Your husband's parents will then not inherit in addition to you as a wife or widow and will also have no compulsory share claim.
When the final decision invalid is and therefore the legal succession occurs, the widow inherits 2/3 and the parents of the deceased inherit 1/6 each.
My deceased husband did not make a final decree, i.e. no will. He leaves me a widow. My husband didn't have any kids. His parents are predeceased, but he has two siblings. What is the inheritance law situation? Do his siblings also inherit?
answer:
In this case, you as his wife are the sole legal heir. In this constellation, his siblings have no legal right of inheritance. Siblings of the deceased have legal inheritance rights only if there is neither a spouse or registered partner, nor children (descendants) nor parents (grandparents, great-grandparents) of the deceased.
My husband left his single-family house/condominium, which we lived in as a married home, to our daughter in his will. Am I, the widow, entitled to continue living there?
Answer: Fees to the deceased's spouse or registered partner — unless he has been legally disinherited — as legal advance legacy the right to continue living in the marital or partnership home, and the items belonging to the common household, insofar as they are necessary to continue living in accordance with previous living conditions. The spouse therefore acquires ownership of the household items.
The right of residence is free of charge; however, the person entitled from the legal advance legacy must also bear the associated burdens, such as the costs of operating and maintaining the apartment.
My husband had made me his sole heir in his will written five years ago. One year before his death, he filed a divorce lawsuit in court, but he did not change his will. The divorce proceedings were still pending before the court at the time of his death. Am I the sole heir?
answer:
The final will (the will) — and thus your appointment as sole heir — is “repealed” “in case of doubt” even then — is therefore no longer valid — if the deceased (or you yourself as a beneficiary of the will) has initiated the court proceedings to dissolve the marriage (or, in the case of a registered partnership, its dissolution) before death (Section 725 (2) of the Austrian Civil Code); that would only not be the case if the Deceased in the will expressly would have ordered the opposite, i.e. that you are appointed as heir regardless of the divorce action.
The deceased had been separated from his wife for 10 years. The deceased had no children. I am the deceased's partner. We had lived together in a domestic, conjugal community for the last five years before he died. The deceased did not draw up a will. Do I have legal inheritance rights as a partner?
answer:
The partner has no “ordinary” legal right of inheritance. In the present case, in the absence of a final will, the wife is the sole legal heir.
The partner's “extraordinary inheritance law” would be only when the deceased person leaves behind neither legal nor testamentary heirs [the wife is the legal heir, note] and if the partner lived in the same household with the deceased in the last three years before his death.
The requirement of a joint household should be waived if there were significant reasons, such as health or professional reasons, but otherwise there was a special bond typical of partners.
In principle — with the exception of the above-mentioned case of the partner's “extraordinary inheritance right” — the partner only has one — for a limited period of time —”legal advance legacy“. This means that after the deceased dies, he may continue to live in the shared apartment for another year and may continue to use the household items as necessary. However, if the deceased was married or “partnered” with someone else at the time of death, this right does not exist.
However, the partner has a legal right of entry into tenancy law in an apartment that falls within the full or partial scope of application of the Tenancy Law Act. This is provided that the partner lived in the rented apartment together with the deceased, the tenant, in a marital household community at least three years before the death.
In addition, it should be said: It would be permissible for the testator to appoint his partner as (sole) heir in his will. In this case, the surviving spouse is entitled to the compulsory share of half of the estate.
Additional question to question 10:
As a partner, I had cared for and cared for the deceased more or less “around the clock” for the last two years before he died due to his serious illness. Am I entitled to a “care legacy”?
answer:
Related persons are entitled to the statutory care legacy: persons from the group of legal heirs, their children or partners, partners or their children, provided that they
The care legacy can be withdrawn if there is a reason for disinheritance; it does not apply if there is a reason for inheritance.
In his will, my father appointed his daughter (my half-sister) as heiress and set me on the compulsory share and even reduced it by half. Is this admissible, or under what conditions would it be admissible?
answer:
This question must be answered in two parts:
First, it is permitted for the father to appoint individual children as heirs and limit others to the compulsory share.
Whether the conditions for the deceased person to ultimately reduce the compulsory share to half are met must be examined separately: This reduction of the compulsory share to half would be admissible if the testator and the beneficiary of the compulsory share were not in any close relationship at any time or at least over a longer period of time, as is usually the case between family members and spouses. As a guideline for this “longer period”, a duration of 20 years is assumed. However, the reduction in the compulsory share has nothing to do with the marital or illegitimate nature of the child.
My deceased husband appointed me, his wife and now widow, as sole heir in his will. Our two children, with whom we lived in harmonious family harmony for years and decades, are not mentioned in the will. Do the children not inherit anything or are they at least entitled to the compulsory share?
answer:
As a surviving wife, you are the sole heir and therefore the only heir. The children are — due to lack of inheritance — not heirs.
A distinction must be made between the question of whether the children are entitled to compulsory shares: Unless the children have been rightly disinherited or are deserving of inheritance, the two children are entitled to the statutory share in the described case. Each child is entitled to a compulsory share of half of their statutory share of inheritance — the statutory share of inheritance would amount to 1/3 each if there was a wife and two children — i.e. a compulsory share of 1/6 of the estate.
If a child has a reason for disinheritance, the failure to mention, the “transfer” of the child in question in the will, can be regarded as “tacit disinheritance.” The deceased does not have to state the reason for disinheritance in his will. However, for the disinheritance to be effective, the reason for disinheritance must actually exist and be the cause of the disinheritance. Otherwise, the child is entitled to his compulsory share.
My father appointed my brother as sole heir and left me (his sister) a property in his will which, at the time he had drawn up the will, was worth about the same as the inheritance with which he endowed my brother. In the meantime, my father has sold this property that was bequeathed to me. He used some of the proceeds from the sale for his life and invested most of it in securities, which would now benefit my brother as sole heir. Can I demand that I receive at least the equivalent value of the property assigned to me in my will?
answer:
Here you have to focus on the specific circumstances! In the event of sale of the property, the revocation of the legacy is generally presumed1. However, the presumption may also be that the testator wanted to ensure a division of his assets, in which only one should succeed as an inheritance, but the other should be equated in value. In that case, the sole heir must either buy the property or pay its value to you as the legatee.
My deceased father was widowed and leaves behind two children, namely my sister and myself. In his will, he appointed his partner as sole heir. Do my sister and I have any inheritance rights?
answer:
This is where compulsory share law comes into play. The legal inheritance of you and your sister would each amount to half of the estate. Your compulsory share is equal to half of the statutory share of the inheritance, i.e. 1/4 for you and your sister. You are entitled to payment of a compulsory share of 1/4 of the value of the pure estate.
Supplementary question to question 15:
My deceased father's pure estate amounts to €1 million. In a handwritten note, my father had stated with the words “my last order” that he would appoint his partner as heiress and that we — his two children — should receive the condominium belonging to him (worth €200,000) after his death. He wrote and signed the paper himself. Do we children have any other requirements?
answer:
The note is obviously a final will made by hand with an inheritance in favour of the partner. The condominium is a legacy for the two children. Since the partner has no legal right of inheritance, the compulsory share of the two children would amount to 1/4 of the estate, i.e. 250,000€ each. The inheritance of the condominium worth a total of €200,000 (share per child therefore €100,000) does not fully cover each child's compulsory share of €250,000 each. Each of the children is therefore entitled to payment of a compulsory share supplement of €150,000 each from the estate.
Supplementary question to question 16:
Can we children reject the inheritance of the condominium subject to the compulsory share? Or in other words: Can we demand payment of €250,000 each instead of having to accept the condominium?
answer:
Basically no.
This could only be different if the acceptance of the legacy is unreasonable. However, this is not obvious in the case of a condominium.
My father remarried after his divorce. He appointed his second wife as sole heir in his will and placed his four children from his first and second marriage on the compulsory share. In addition, shortly before his death (variant: more than two years before his death), he gave his second wife the majority of his fortune, namely 9 million euros. The net discount is therefore only worth €1 million. Do we children have compulsory share claims, if so in what amount?
answer:
The wife from the now divorced first marriage is not the legal heir. The legal inheritance of the current wife (second marriage) would be one third, the legal inheritance of each of his four children 1/4 of 2/3, i.e. 1/6 each. Each child's compulsory share is half of their legal share of inheritance, therefore 1/12 each. With a net discount of €1 million, 1/12 is therefore €82,500 per child. In addition, each of the children has the right to demand the so-called compulsory donation (1/12 of €9 million = €750,000) from the donation to the second wife. It does not matter whether this donation to the wife was made within the last two years before his death or before. This is because donations to persons who belong to the group of legal heirs must be credited for an indefinite period of time.
My father was the owner of a large company. My older brother studied mechanical engineering and my father hired him as managing director of the company. A few years after my brother got married, my father donated the company (worth €10 million) to my brother's wife. Since then, my brother has continued to run the company and continues to receive a very good salary. Ten years after the donation, my father passed away and left no fortune behind. I regard the donation to my brother's wife as a gift to my brother himself, who — although formally only as an employee — can act and act like an owner in the company and receives the company's income largely in the form of a large salary. My father, brother and his wife had apparently constructed the present decree over the company in such a way that I should no longer be entitled to a donation after the legal two-year period following the donation (Section 782 ABGB). At least, in my opinion, this is an abusive evasion of law in order to thwart my share of duty. In this constellation, am I entitled to a compulsory donation from my sister-in-law as a recipient?
answer:
Your brother's wife, i.e. your father's daughter-in-law, is a “stranger” or “third party” in relation to your father in terms of inheritance law, as she has no legal right of inheritance and no compulsory share right vis-à-vis him. She therefore does not have to surrender to you, as a person entitled to compulsory shares, the gift that she received more than two years ago before the death of the gift giver, i.e. does not have to pay a donation obligation. For reasons of legal certainty, case law rejects the legal figure of circumventing the compulsory share claim in the case of donations to a close relative of a legal heir — here: to his spouse — who is not entitled to compulsory shares.
This could be different if your brother has after all acquired “beneficial property” or a similar legal status with regard to the gift, such as
However, it will usually be difficult to prove these circumstances.
My deceased father leaves me and my sister as his only two children. Our mother passed away a few years ago. Our father did not marry again. The father has indeed established a final decree in which he appoints half of me and my sister as heirs. However, it is doubtful whether this will is valid because his mental impairment was already considerable.
My father had given and handed over the amount of €1 million to my sister at a time when he was undoubtedly legally competent.
My father's pure estate is worth €1 million. Does my sister have to have the value of her gift credited to her inheritance — with the result that she receives nothing from the abandonment?
answer:
This question can only be answered in two parts:
If that Will not be valid is, so tread legal succession one. You and your sister each inherit half. In this case, your sister must, at your request, have your father's donation offset against her share of the inheritance (Section 753 ABGB).
Exception: The gift for children (descendants) is not legally credited if the deceased made the donation from income without reducing his parent assets, willingly decrees the crediting or has agreed on the non-crediting with the gift recipient in writing.2
If none of these exceptions apply here, your sister will receive nothing from the estate in the event of legal succession — although she is half the legal heir — because she must have her father's donation worth €1 million credited at your request. You will therefore receive the entire discount of €1 million.
If, on the other hand, the will Valid is, in principle, your sister does not have to have the donation offset against her share of the inheritance (unless this would have been agreed in writing with your father or ordered in a will3).
Your compulsory share would also not be reduced because you would receive your compulsory share of half of your statutory share of inheritance (i.e. 1/4) in half of the inheritance anyway: Because half of the estate of €500,000 corresponds exactly to your compulsory share of a quarter of the total value of gift and estate combined (€2 million).
Resume: The legally mandated crediting of donations in cases in which the testator does not draw up a will but inherit the children as a result of legal success is intended, in accordance with the intention of the legislator, to prevent unequal treatment of children presumably not wanted by the testator. For laymen in law, the statutory accounting rule comes as quite a surprise. It is often not intentional; in this case, it is advisable to draw up a will or to agree not to credit the donation against the inheritance while still alive.
The deceased left a personal, handwritten will, in which he detailed rules on who will be used as heir and who will receive which legacies. However, the will has not been signed. Is this will valid?
answer:
No, because the will is not signed. If, on the other hand, the will were signed with the name of the testator — his first name alone would also be sufficient — so that there is no doubt as to the identity of the author, it would be valid.
On the other hand, a mere oral statement from the testator that he has today drawn up his will and placed it in the desk drawer would not replace the need for handwritten signature. Despite this oral explanation, the will would remain invalid.
My 90-year-old father is still in his right mind, but he can no longer write or sign by hand. He wants to draw up a formal will. How can he do that?
answer:
If it is reasonable and possible for him to make a character, a third-party will is possible. Otherwise, a notarial will would have to be drawn up (see also the answer to question 23).
I want to draw up a detailed will in which I consider numerous persons from my family and make regulations in the event that persons named by me do not accept the appeal as heir or legate or do not meet certain requirements. I find it difficult to write by hand myself, but I am still able to write a few words and sign. What form do I have to comply with for the will to be valid?
answer:
In particular, the “foreign will” — i.e. a will written by machine or as a computer printout — comes into consideration, which you sign yourself in the presence of three requested wills and also handwritten the addition”That is my last wish.“Add it. The will also requires the participation of at least three persons as witnesses who request you to act as witnesses of the will and who will be present continuously when you draw up the will. The witnesses must sign the will themselves and with the handwritten attachment”as a requested witness“Sign.
It should also be noted that the will document forms an inseparable unit (e.g. a four-sided contiguous sheet of paper) and does not consist only of loose sheets of paper or of only fleetingly stapled sheets of paper. In addition, the witnesses must be impartial, they must not be included in the will itself and they must have no close relationship with the testator or with the persons covered in the will (Section 588 ABGB).
It is also possible to draw up the will as a notarial will or on record in court.
If you can no longer write by hand at all, a notarial will would have to be drawn up in which you make a character with your foot or mouth4; even though this is not possible, the opposing impediment must be expressly stated in the notarial will and specifically confirmed by the file witnesses.
My mother, who died in the meantime, had two children, namely my sister and me; my mother was unmarried and did not have a registered partner. My sister and I are therefore half the legal heirs.
Option 1: My sister cheated my mother out of €1 million. My mother has never forgiven my sister for this fraud and has also testified before witnesses that she refrains from filing a criminal complaint against my sister only because of the close family relationship. Does deceiving my sister result in her hereditary status?
answer:
The fraud does not result in hereditary status because the offence is “privileged” in the family circle in terms of the amount of the threat of punishment and therefore the threat of punishment is only up to six months imprisonment5, i.e. no more than one year of imprisonment, as Section 539 ABGB would require. It doesn't matter whether your mother and her daughter (= your sister) lived together or not.
Option 2: After my mother died, my sister stole my mother's gold bars worth more than €300,000 from the safe in order to illegally enrich herself. Does this theft of my mother's abandonment justify my sister's hereditary status?
In this case, am I entitled to the entire inheritance of my deceased mother?
answer:
In this case, your sister is hereditary because the theft is not privileged over the mother's abandonment under Section 166 StGB and the threat of punishment is therefore one to ten years imprisonment. However, whether the entire estate is yours alone depends on whether your sister has descendants who will then take their place6unless their children are also unworthy of inheritance.
F. Inheritance law in connection with condominiums
My married parents were joint owners of a condominium in Vienna. Each of them owned half of the legal minimum share of the condominium. The entire apartment has a market value of €1 million, the proportionate value attributable to my mother was therefore €500,000. In addition, there are no significant values in the estate. After my mother dies, my father wants to claim half of my mother's share of the condominium that serves his living needs so far, even though my mother has made me the sole heir in his will. What is the legal situation?
answer:
In the case of residential property, there are special legal regulations for succession in the event of death7: Your mother's share of residential property is transferred to her father as a result of a legal order. Since the father is a beneficiary of compulsory shares and there is still a person entitled to compulsory shares (the child), the father has half of the value of the condominium as a takeover price8, i.e. to pay a quarter of the value — i.e. €250,000 — to the estate. Your mother's estate is therefore worth €250,000.
The father must have the advantage of the favourable takeover price of €250,000 offset against his compulsory share, which more than meets his compulsory share claims (1/6 of €500,000). As a child and sole heir, you will therefore receive the amount of €250,000 in money attributable to the estate9.
We would be happy to advise you on donations and transfers of assets during your lifetime and on questions of inheritance and compulsory share law and in probate proceedings!
Contact: RA Univ.-Prof. Dr. Johannes Reich-Rohrwig
email: johannes.reich-rohrwig@rr-law.at
Telephone: +43/1/2080029
1 SECTION 724 ABGB.
2 If this crediting agreement is only made after the donation has been made, the form of a notary act must even be complied with (Section 752 ABGB).
3 Donations based on moral duty, for reasons of decency and for charitable purposes are also excluded from crediting.
4 OGH 2 Ob 106/23m; 2 Ob 35/23w
5 Section 166 StGB.
6 SECTION 542 ABGB.
7 SECTION 14 WAY 2002.
8 Section 14 (3) WEG 2002.
9 2 Ob 123/24p.
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