Succession law and wills

Austrian law knows three routes for passing assets on death. Most estates pass by intestacy — the statutory order of succession that applies where nothing else has been arranged. A will lets the testator depart from that order and is the instrument of choice for anyone with meaningful wealth or an international family. A contract of inheritance, binding in a way a will is not, is available only between spouses and registered partners, must be made as a notarial deed, and cannot tie up the whole estate — a clear quarter has to stay free for disposal by will. It is rare in practice.

Under intestacy the closest relatives inherit: primarily the children and the spouse or registered partner. The spouse's quota is one third where there are descendants, with the children sharing the remainder equally — a spouse and two children therefore take one third each. Where the deceased leaves a spouse but no children, the spouse takes two thirds and the deceased's surviving parents one third — and if a parent has predeceased, that parent's share passes to the spouse too, so the spouse takes the entire estate where both parents-in-law have died. Siblings never inherit alongside a spouse. In the absence of descendants and spouse, ascendants and their lines — parents, siblings, nieces and nephews — inherit instead.

Note what intestacy does not provide for: the unmarried partner is not a statutory heir alongside the deceased's relatives. A partner who shared a household with the deceased for the last three years may stay on in the home and use its contents for a year, and takes the whole estate only in the rare case where no relative is entitled to inherit at all; short of that, the partner takes nothing. For unmarried couples relocating together, a will is not optional refinement but the only instrument that makes the partner an heir.

Freedom of testation in Austria ends where forced heirship begins. The spouse or registered partner and the descendants who would inherit on intestacy are entitled to a compulsory portion of half their intestate share, and they keep that entitlement whatever the will says — unless they have given it up in advance by notarial deed, or the will halves it on the statutory ground that no family relationship existed for a long period. The claim is monetary: the protected heir cannot demand the villa or the shareholding itself, but can demand cash equal to the portion's value — which, against an illiquid estate, can force sales all the same.

The arithmetic is simple. A testator with a spouse and three children leaves everything to the spouse; on intestacy each child would have taken two ninths, so each child can now claim one ninth of the estate's value from the spouse. Deprivation of the compulsory portion is possible only on narrow statutory grounds, and while the law allows some flexibility in how the portion is satisfied — including deferral of payment for a time — it also polices avoidance. On the statutory heirs' request, gifts made during the testator's lifetime, including endowments to foundations, can be added back when the portions are computed: gifts to anyone outside the circle of protected heirs count if made in the two years before death, while gifts to a spouse, registered partner or descendant count however long ago they were made.

For families arriving from England, the United States or other common-law jurisdictions, this is the single largest adjustment in estate planning: a structure built on full testamentary freedom — everything to the surviving spouse, a discretionary trust for the children — collides with Austrian forced heirship the moment Austrian law governs the estate. How trusts themselves fare in Austrian hands is a separate question, treated on the foreign trusts and foundations page.

This is the point most new residents miss. The EU Succession Regulation, which Austria applies to all cross-border estates, designates the law of the deceased's habitual residence at death as the default governing law. A will drafted years earlier in London or San Francisco under the assumptions of another legal system is suddenly read against Austrian rules — and Austrian forced heirship applies to it. The regulation offers the counter-move: a testator may choose the law of a state of their nationality to govern the succession, but the choice must appear in the will or other disposition itself, either expressly or unmistakably from its terms — and only an express clause is worth relying on. For many arrivals, adding a properly drafted choice-of-law clause — or deciding deliberately not to — is the single most consequential sentence in the estate plan.

Form, at least, travels well: a foreign will validly made under the rules at the place of signature is normally recognised in Austria from a formal perspective. Substance is where the work lies. The sensible sequence is to review the estate plan as part of the broader pre-immigration review and finalise it soon after arrival: confirm which law should govern, test the existing will against the compulsory portion, and check the interaction with matrimonial property — an Austrian divorce court and an Austrian probate court divide wealth on different principles, as the family law page explains. Since Austria taxes neither inheritances nor gifts, as set out on the inheritance and gift tax page, the estate plan can be built around family governance rather than tax — a rarer luxury than it sounds. The wider toolkit sits on the wealth and succession hub.