Which is the competent authority?
Who should I contact?
Last update: 10/3/2012
The succession procedure comes under the district court ( Bezirksgericht ) of the district in which the deceased had his/her place of residence.
The Austrian authorities are competent for all property located in Austria, if it is owned by Austrian nationals. They are competent for property owned by foreign nationals, provided that the property is located on Austrian territory and that, in the case of movable property, the habitual place of residence of the foreign national, at the time of his/her death, is in Austria. At the request of the heirs, the Austrian authorities are also competent for movables located abroad, provided that these movables are owned by an Austrian national whose habitual place of residence, at the time of his/her death, is in Austria.
Immoveables located abroad do not fall under the competence of the Austrian authorities.
The procedure is a judicial procedure ( Verlassenschaftsverfahren ) that is introduced automatically by the district court of the place of residence of the deceased on being notified of the death. It is carried out by the civil law notary as a court commissioner acting on behalf of the court. The legal proceedings end with an order.
Detailed information
Which international rules of jurisdiction apply:
- to the assets of a national or a foreign citizen?
In the absence of applicable provisions in international agreements, the succession of real property located in Austria will be settled in Austria, provided that the deceased had Austrian nationality (§ 106 Abs 1 Z 1 Jurisdiktionsnorm, JN). In such a case, the succession of all personal property will also be settled in Austria (§ 106 Abs 1 Z 2 JN).
If the deceased was a foreign national, the succession of real property located in Austria will be settled in Austria. For personal property bequeathed by the deceased in Austria, the Austrian courts have jurisdiction if the deceased had his/her habitual residence in Austria.
- to the assets of the deceased if located abroad?
If the deceased had his/her habitual residence in Austria and held Austrian nationality, the succession of personal property located abroad will only be settled in Austria at the request of one of the parties (§ 106 Abs 1 Z 3 lit a Jurisdiktionsnorm, JN and § 143 Abs 2 Ausserstreitgesetz, AussStrG). The succession of real property located outside Austria is not settled in Austria.
On the other hand, if the deceased was a foreign national, none of the estate abroad is governed by Austrian law.
Which authority is responsible for the succession procedure?
The court of first instance (“Bezirksgericht”) which had jurisdiction for the deceased before his/her death (domicile, habitual residence) (§ 105 Jurisdiktionsnorm, JN) and §§ 65, 66 JN has material and territorial jurisdiction. For the succession procedure, the court of first instance appoints a civil law notary as judicial administrator (§ 1 Gerichtskommissärsgesetz, GKG).
How and by whom is the succession procedure instigated?
The succession procedure is automatically instigated as soon as the court is informed of the deceased’s death (§ 143 Abs 1 Ausserstreitgesetz, AussStrG).
How is the heir’s capacity checked?
The heir’s capacity is checked as part of the judicial succession procedure (§ 797 Allgemeines Bürgerliches Gesetzbuch, ABGB).
Can or must an inventory of the estate be drawn up?
In his/her capacity as judicial administrator, the civil law notary (§ 1 Abs 2 Z 2 lit b and § 2 Abs 2 Gerichtskommissärsgesetz, GKG) is required to draw up an inventory of the estate in the following cases: in the case of an estate accepted without liability to debt beyond the assets descended; where the forced heirs include under-age children or need a legal representative for other reasons; if the division of the heir’s estate has been authorised (protection of creditors); if a subsequent heir needs to be taken into account or if a private foundation has been created by will; if the estate could devolve to the State because there are no surviving heirs; or if requested by a duly authorised person or by the trustee of the succession (§ 165 Ausserstreitgesetz, AussStrG).
Is there a system regarding the administration of the succession?
In Austria, between the transmission of the estate and the deed required for its acquisition (vesting order), the succession is considered as being in abeyance (hereditas iacens) (§ 547 ABGB). A succession in abeyance is considered as a legal entity having legal status and requiring a representative capable of accomplishing the necessary administrative acts (§ 810 ABGB).
How is the succession procedure closed?
The succession procedure is closed when a vesting order is issued by the competent court. Once the vesting order becomes effective, the heirs can acquire the estate and the assets and liabilities are transmitted to the heirs (substantive registration of rights). The succession in abeyance (hereditas iacens; § 547 Allgemeines Bürgerliches Gesetzbuch, ABGB) ceases to exist.
How is the estate transmitted to the heirs/legatees?
No-one is entitled to acquire an estate of his/her own volition. The estate is transmitted ipso jure pursuant to a vesting order issued by the competent court (§ 797 Allgemeines Bürgerliches Gesetzbuch, ABGB and § 177 Ausserstreitgesetz, AussStrG). The vesting order presupposes the closing of the succession procedure instituted automatically by the court and a declaration of acceptance of the succession in which the heir/heirs prove their title. For the transmission of real estate, this must be registered in the land register (Grundbuch).
