What are the national rules in case of intestate succession (no will has been set up)?
The rules of intestate succession are applicable to any part of the estate of which the testator has not disposed by setting up a will or concluding an inheritance contract. No distinction is made between movable and immovable property.
Austrian law provides for four classes, so called parentelae, comprising the persons entitled to succeed to the estate of a deceased person (system of succession per stirpes). In any case, only the members of one homogenous class may become heirs. Any member of one of the first three classes who is no longer alive at the time of the testator's death is replaced within that same class by his or her descendants.
- The first class comprises the testator's children and their descendants.
- The second class comprises the testator's parents and their descendants (i.e., in particular, the testator's siblings).
- The third class comprises the testator's grandparents and their descendants (i.e., in particular, the testator's parents).
- The fourth class comprises the testator's great grandparents. Members of this parentela are not replaced by their descendants in case they are no longer alive at the time of the testator's death.
Members of lower parentelae may only become heirs if no members of a higher class or such higher class members’ descendants succeed to the estate. The net estate (that is, after the debts and liabilities of the estate have been discharged) is equally allocated to all members of any eligible class who are willing to succeed to the estate.
The share of the net estate allocated to the surviving spouse varies according to the number and class of other relatives surviving the testator.
- In case any member of the first parentela succeeds to the estate, the testator's spouse receives 1/3 of the net estate.
- In case any member of the second parentela succeeds to the estate, the testator's spouse receives 2/3 of the net estate plus any share of the remaining third which – provided, no spouse existed – would be allocated to any descendants of the testator's siblings.
- In case any member of the third parentela succeeds to the estate, the testator's spouse receives 2/3 of the net estate plus any share of the remaining third which – provided, no spouse existed – would be allocated to any descendants of the testator's grandparents.
- In case members of the fourth parentela were to become heirs, the testator's spouse receives the whole net estate in lieu of said persons.
The estate of an individual who dies leaving no spouse and no relative within one of the four statutory parentelae becomes property of the Republic of Austria.
What are the national forced heirship rules, if any existing?
Under Austrian law, part of the testator's net estate (statutory portion) must be reserved for close relatives who are alive at the time of the testator's death. As a consequence, the testator may not freely dispose of such statutory portion.
- The testator's children or, if such children died before the testator's death, their descendants must receive half of the portion of the net estate which would have been allocated to them in case of intestate succession;
- If no children exist, the testator's parents, grandparents or great grandparents receive 1/3 of the portion of the net estate which would have been allocated to them in case of intestate succession. Descendants of such ancestors are not eligible to forced heirship;
- In any case, the testator's spouse receives half of the portion of the net estate which would have been allocated to him or her in case of intestate succession.
If more than one person is entitled to receive a statutory portion of the net estate, such portion is equally allocated to all eligible beneficiaries. The statutory portion is reduced to nil and all the estate can therefore be freely disposed of if none of the close relatives referred to above is alive at the time of the testator's death.
Any disposition by the testator made in favor of persons who are not eligible to receive a share of the statutory portion is proportionally abated so as to be limited to the disposable portion of the estate.
What are the national formal requirements when setting up a will (holographic will, will confirmed by witnesses, will confirmed by a notary public)?
Every person who is of sound mind, memory and understanding and who has completed the age of 18 may validly dispose of the whole or any part of the disposable portion of his or her estate by setting up a will. Persons between the age of 14 and 18 may do so only orally before a competent court.
Austrian law provides for the following ways of setting up a will:
- A will may be made in writing without witnesses, provided that the testator conceives and writes down such will personally by his or her own hand and signs it (so called “holographic will”);
- If a will is prepared in writing by a third party (i.e. not personally conceived and written down by the testator him- or herself), it is only valid if signed by the testator under participation of three witnesses, two of which need to be present at the same time (so called “allographic will”). The testator must expressly point out to the witnesses that the written document contains his will. After the testator has signed the document, the witnesses must also add their signatures. Heirs, legatees and their close relatives may not act as witnesses. This is also true for people under the age of 18, handicapped persons and people who do not speak the testator's language;
- The testator may also set up a will before a notary public or a competent district court;
- If there is imminent danger that the testator might die or become unable to validly dispose of his estate by abiding to any of the aforementioned formalities, he may also make his will orally or in writing in the presence of just two witnesses. Such will expires upon the lapse of three months of the discontinuation of the respective danger.
Strict adherence to the formalities mentioned above is mandatory and must be complied with rigidly otherwise the will is null and void.
Is inheritance and/or gift tax in place or abolished?
Any form of succession tax in respect of deaths has been abolished under Austrian law.
This information was compiled by Alix Frank Rechtsanwälte GmbH.