Recognition of German heirs in Austria

Both Germany and Austria are subject to the EU Succession Regulation (EuErbVO). The question of who has become an heir is generally determined by the law of the country in which the deceased had their last habitual residence.

Tip: The testator can specify in their will or inheritance contract that Austrian/German inheritance law should apply, regardless of their place of residence. This makes it easier for heirs to settle the estate.

The choice of law applies to the entire estate (principle of unity of succession), including real estate abroad.

Example: A German citizen residing in Salzburg can stipulate that Austrian inheritance law should apply to his entire estate, including Austrian real estate.

The choice of law also influences the settlement of the estate: While in Germany the inheritance automatically passes to the heirs (universal succession), in Austria the transfer only takes place by court decision (confirmation of inheritance).

With a European Certificate of Succession, German heirs can submit the necessary applications to Austrian authorities.

Tax treatment of inheritance cases

Austria does not levy inheritance tax. However, real estate transfer tax is payable on the transfer of Austrian real estate. This is based on the market value.

In Germany, the entire inheritance is taxable if the testator or heir was subject to unlimited tax liability there at the time of inheritance – for example, through residence or habitual abode.

As there is no double taxation agreement between Germany and Austria for inheritances, double taxation may occur: through Austrian real estate transfer tax and German inheritance tax.

Tip: If the deceased and the heirs have not been resident in Germany for more than five years, German inheritance tax on Austrian real estate can be avoided by moving to Austria in good time.

Heirs' rights to information in Austria

In Austrian probate proceedings, the competent court may obtain information about the deceased's bank accounts. After the inheritance has been settled, the heirs can contact the banks directly—bank secrecy does not prevent this.

There are also rights to information with regard to Austrian private foundations: heirs and beneficiaries of compulsory portions can request information about gifts, annual financial statements, and the foundation deed.

Probate proceedings in Austria

In Austria, probate proceedings are initiated in every case of death. The registry office sends the death certificate to the district court, which appoints a notary as court commissioner. The commissioner identifies the relatives and draws up an inventory of the deceased's assets.

The process concludes with a decision on the distribution of the estate, which legally determines the heirs and their shares. Only with this decision does the estate pass to the heirs.

Please note: The heirs must submit a declaration of acceptance of inheritance in order to receive their inheritance.

Jurisdiction for the proceedings

Whether probate proceedings are to be conducted in Austria or Germany depends on the last habitual residence (EuErbVO) of the deceased.

Example: If the deceased's last place of residence was in Austria, the Austrian court has jurisdiction over the entire estate, regardless of whether the assets are located in Austria or abroad.

Tip: The testator can determine the jurisdiction of Austrian/German courts by including a jurisdiction clause in the inheritance contract.

Relevant publications by Maier Rechtsanwälte:

“Are German courts not obliged to include the deposit number and cadastral municipality of an Austrian property in the European Certificate of Succession?”

Anwaltsblatt (AnWBL) 2018, pp. 639–641

Commentary on OGH 5 Ob 35/18k, ErbR 2019, 100–104 (with Dr. Wittwer)

Commentary on AG Augsburg 27.6.2015, 3 VI 94/17 and OLG Munich 12.9.2017, 31 Wx 275/17, ErbR 2018, 261–262