Austrian Probate: How to Access Assets in Austria?

British Testator owned a Bank Account in Austria: Will an English Grant be accepted in Austria?

No, unfortunately, it will not. If a British person who owns assets in Austria dies, the personal representative needs to obtain a separate Austrian grant of probate. The English grant is rather worthless in Austria, just as an Austrian (or German or French etc) grant of probate is not being accepted within the United Kingdom, because the UK has opted out of the EU Succession Regulation (even before Brexit).

What kind of Austrian grant needs to be obtained depends on the circumstances of the case:

  • If the decedent was an Austrian national –OR– if the decedent was habiltually resident in Austria –OR– if he/she did own property (immoveables) there, then the comprehensive Austrian Probate Procedure is unavoidable, the so called “Verlassenschaftsverfahren”. This involves significant paperwork and the executor(s) / beneficiaries must go through an Austrian notary public (Notar).
  • If the decedent did not live in Austria and owned exclusively moveable assets there (e.g. an Austrian bank account), then a simpler and quicker probate procedure is possible under Austrian law, the so called “Ausfolgungsverfahren” (delivery procedure). This is similar to “re-sealing” a foreign grant. It still requires an Austrian court order, the submission of original documents and certified translations, but the overall procedure is much quicker and simpler.

If, for instance, a deceased British citizen owned a bank account in Austria but his/her main estate was located within the UK, then the executor or administrator of the UK estate can use the English grant (i.e. grant of probate or letter of administration) and apply to the competent Austrian probate court to be accepted by court order (Gerichtsbeschluss) as the “entitled person” (berechtigte Person) with regard to the moveable assets in Austria; see section 150 Austrian Ausserstreitgesetz and sec. 10 EU Succession Regulation.

This means, however, that the probate application in Austria cannot be made until the English grant has been issued. In practice, these Austrian bank accounts or other moveable assets cannot be accessed quickly. And even after the English grant has been issued, there are quite some formal requirements which need to be dealt with. Because even for this simplified venue of an Austrian probate application, the court needs to be provided with the following documents:

  • An original copy of the English Grant (ideally the “yellow” copy so the Austrian court definitely believes that it is an original; otherwise an apostille would be necessary)
  • An original copy of the death certificate (or a legalised, i.e. apostilled copy of the same)
  • Official proof of the decendents nationality.
  • All executors mentioned in the English grant will have to sign the application
  • The English Grant and the death certificate will need to be officially translated by an Austrian, court admitted, translator. Whether the English will (if such a will exists) must also be translated depends on the court.

The Austrian probate court fees and the fees of the Austrian civil law notary (who will be instructed by the Austrian probate court to contact the bank) will depend on the value of the bank account. As in Germany, there are statutory fee tables in Austria which determine the legal costs of a probate case.

We saved the best news for last: As complicated as the Austrian probate procedure may be, there is no inheritance tax in Austria. None whatsoever.

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For more information on German-British and Austrian-British probate matters and international will preparation see the below posts by the international succession law experts of Graf & Partners LLP:

Solicitor_SchmeilzlThe law firm Graf & Partners and its German-English litigation department GP Chambers was established in 2003 and has many years of experience with British-German and US-German probate matters, including the representation of clients in contentious probate matters. We are experts ininternational succession matters, probate and inheritance law. If you wish us to advise or represent you in a German or cross border inheritance case please contact German solicitor Bernhard Schmeilzl, LL.M. (Leicester) at +49 941 463 7070.

How to deal with Estates in Austria

Probate Proceedings in Austria are very different from those in Germany

If a decedent who was not resident in Austria owned any assets in Austria at the time of his or her death, this Austrian Estate can only be accessed after going through formal Austrian Probate.

Neither an English Grant of Probate nor a German Certificate of Inheritance will enable the executors or beneficiaries to access the Austrian assets, because Austrian banks, brokers, insurance companies and other institutions will ask for a Grant of Probate (“Einantwortungsbeschluss”) issued by the comptenent Austrian Probate Court. In fact, the situation in Austria is considerably more complicated and costly compared to Probate proceedings in Germany or in the United Kingdom. This is due to the fact that Austrian Probate Courts take a much more active role in the administration of an Austrian estate. This generates significant and sometimes unavoidable probate court costs.

Now, what needs to be done if there are Austrian assets?

Under Austrian law, the following rules apply to estates in Austria of persons resident abroad at the time of their death:

Upon the testator´s death, the estate falls to the jurisdiction of the Austrian Probate Court (Verlassenschaftsgericht). The decedent’s assets in Austria are automatically sequestered, i.e. only persons authorised by the Austrian Probate Court (Verlassenschaftsgericht) can deal with them. In contrast to Germany, Austria does not accept any trans-mortal powers of attorney, i.e. any powers of attorney given by the deceased authorising third parties to operate his/her bank accounts or stocks dossiers etc expire on the decedent’s death.

Which local probate registry shall have jurisdiction is determined by whether the decedent owned real estate (immoveables) in Austria or, if not, where the majority of the moveable assets are (e.g. bank accounts).

The Austrian Probate Court will request the following documents (originals or certified copies) to be submitted:

  1. the death certificate
  2. official proof of the testator´s nationality at the time of death, unless this fact is stated in the death certificate,
  3. the documents required to establish the hereditary succession, i.e. the will, birth certificate, marriage certificate etc.

If the decedent was a foreign (i.e. non Austrian) national on the day of death, and if agreements on mutual equal treatment exist between his/her country of origin and Austria, the probate proceedings will be conducted by the competent courts or other authorities of the decedent’s country of origin on the day of his/her death provided that the assets representing the estate are movable property only. In these cases, simplified court proceedings are available, known as the delivery procedure. (“Ausfolgungsverfahren”). More on this re-sealing procedure in this post.

Such delivery procedure only requires a decree issued by the competent foreign court regarding the beneficiary entitlement to the inheritance (i.e. names of the entitled persons or of the executor) to be submitted to the Austrian court together with the additional documents listed above.

If the beneficiaries or executors are resident outside Austria, it is usually necessary to entrust the probate or delivery proceedings to either an Austrian Notary Public or to a German speaking probate lawyer.

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The German-British probate expert Bernhard Schmeilzl specialises in international wills and estate planning for British-German and British-Austrian families since 2001. He knows the typical problems that arise when an English will lands on the desk of a German or Austrian probate registrar or vice versa. Most succession lawyers only know the rules and practical operations of their own jurisdiction. The probate experts at Graf & Partners, however, apply for hundreds of grants each year in England, Germany and Austria, acting either as probate lawyers for personal representatives or acting as executors themselves.

These combined 20+ years of practical experience in non-contentious as well as contentious probate matters in Germany, Austria and the UK make the lawyers of Graf & Partners sought-after lecturers and speakers.

German solicitor Schmeilzl regularly conducts legal seminars and practical workshops on international wills and estate planning as well as on how to obtain probate in Germany, Austria and England. Popular topics for such inhouse seminars for British and German law firms are:

The law firm Graf & Partners and its German-English litigation department GP Chambers was established in 2003 and has many years of experience with British-German and US-German probate matters, including the representation of clients in contentious probate matters. If you wish us to advise or represent you in a German or cross border inheritance case please contact German solicitor Bernhard Schmeilzl, LL.M. (Leicester) at +49 941 463 7070.