Ruqayyah Snyder
Austrian law dictates that every natural person may make a will, and this includes foreigners. In Austria, the reserved portion in a will is also known as the compulsory portion or the intestate share. This portion of the assets cannot be freely disposed of and is reserved for the testator's children (including adopted children) and spouse. The children and the spouse are entitled to at least half of the portion they would have received in the absence of a will.
| Characteristics | Values |
|---|---|
| Who is entitled to a reserved portion? | Children (including adopted children and illegitimate children) and the spouse |
| What is the reserved portion? | At least half of the portion they would get in the case of intestacy |
| What if there are no children? | Parents inherit, but their "reserved portion" is only one-third of the portion they would get in the case of intestacy |
| Can the decedent bequeath the reserved portion to someone else? | No, the reserved portion cannot be freely disposed of |
| Can the decedent bequeath the remaining portion to someone else? | Yes, the remaining portion can be bequeathed to any persons |
| Can the reserved portion be reduced? | Yes, if the person entitled to the reserved portion never had a close family relationship with the deceased or such a relationship has not existed for a long period of time (about 20 years) |
| Can the decedent donate all their estate to other people prior to death? | No, the mandatory heirs can request the donee to give back the gift, if their "reserved portion" has been reduced |
| Are there time restrictions on the above? | Yes, it is limited to gifts given during the last two years before the decedent's death |
| What is the procedure for registering a will? | The will can be registered in the Austrian Central Registry of Wills or recorded in the Register of Austrian Attorneys |
| What information is available in the Austrian Central Registry of Wills? | Data of the testator and the location of the will is available, but not the will itself |
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What You'll Learn
- The reserved portion is half of the intestate share in the estate of the deceased
- The deceased's children and spouse are entitled to a reserved share
- The reserved portion is a part of the assets that cannot be freely disposed of
- The reserved share may be reduced if the entitled person had no close family relationship with the deceased
- The reserved portion is only applicable to Austrian citizens
The reserved portion is half of the intestate share in the estate of the deceased
In Austria, every person is free to decide whom to appoint as their heir in their will. However, this freedom is limited by the "reserved portion", which restricts the degree of testamentary freedom. The reserved portion is half of the intestate share in the estate of the deceased. This means that, in the absence of a will, the children (including adopted children) and the spouse are entitled to a reserved portion that covers at least half of the portion they would have received in the case of intestacy.
The reserved portion is a part of the assets that cannot be freely disposed of, and it limits the freedom to dispose of one's assets upon death. Only the following persons have a right to a reserved portion: children (including illegitimate children), the spouse, and in the case of childlessness, the parents (but their reserved portion is only one-third of the portion they would get in the case of intestacy). Therefore, if a person is not married (including registered partnerships) and does not have any children, they do not need to be concerned about the right to a reserved portion, and they can freely dispose of all their assets.
In addition to the reserved portion, there are other restrictions on how an owner disposes of their estate. Assuming that Austrian law is applicable, the Austrian Civil Code provides for several regulations aimed at protecting mandatory heirs (children and spouse) from the decedent donating all their estate to other people before death. According to these regulations, mandatory heirs can request the donee to return the gift if their reserved portion has been reduced. However, there is a time restriction on this: it is limited to gifts given during the last two years before the decedent's death.
It is important to note that Austrian inheritance law is generally only applicable to Austrian citizens. However, foreigners can make a local will in Austria, and they may become subject to Austrian law if the legal provisions of their country of citizenship refer back to Austrian law. In the case of foreign citizens, it is not possible to write a will by proxy, and they must use one of the recognised methods for making a valid will in Austria.
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The deceased's children and spouse are entitled to a reserved share
In Austria, the reserved portion, also known as the compulsory portion, is a part of the deceased's assets that are protected by law and cannot be freely disposed of. The deceased's children (including adopted children) and spouse are entitled to this reserved portion, which amounts to at least half of the intestate share they would have received if there had been no will. This means that even if there is a will, the mandatory heirs can request the return of gifts from the estate if their reserved portion has been reduced. However, there is a time restriction on this, typically limited to gifts given during the last two years of the decedent's life.
The reserved portion is a concept in Austrian inheritance law that aims to protect the interests of mandatory heirs, ensuring they receive a fair share of the estate. It is applicable to Austrian citizens and foreigners who make a local will in Austria. The law provides for subsequent succession, generally limited to the next generation following the testator. This means that if a person is not married and has no children, they do not need to consider the reserved portion, and they can freely dispose of their assets.
The size of the reserved portion depends on the family structure. If the deceased has a spouse and children, the spouse typically receives one-third, while the children receive two-thirds of the estate. If the deceased leaves behind a spouse and no other heirs, the spouse becomes the sole heir. In cases of childlessness, the parents of the deceased may inherit, but their reserved portion is only one-third of what they would have received without a will.
It is important to note that Austrian inheritance law applies primarily to immovable property located in Austria. For movable property, the jurisdiction of the country where the deceased was a citizen takes precedence. Additionally, Austrian law recognises different types of wills, including holographic wills, non-holographic wills, and public wills, each with specific requirements for validity.
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The reserved portion is a part of the assets that cannot be freely disposed of
In Austria, individuals have the freedom to decide whom to appoint as an heir in their will. However, this freedom is limited by the concept of a "reserved portion" or compulsory portion, which is a part of the assets that cannot be freely disposed of. The reserved portion restricts the degree of testamentary freedom and ensures that specific individuals receive a share of the estate.
The reserved portion is designed to protect mandatory heirs, such as children (including adopted and illegitimate children) and the spouse, from being disinherited or receiving a reduced share of the estate. According to Austrian law, the reserved portion for the children and spouse must cover at least half of what they would have received in the absence of a will. In cases where there are no children, the parents of the deceased are entitled to a reserved portion of one-third of what they would have received without a will.
The reserved portion limits the freedom to make a will and dispose of one's assets upon death. It is important to note that siblings, nephews, nieces, unmarried partners, or parents do not have a right to the reserved portion. Therefore, individuals who are not married and do not have children can freely dispose of their assets without considering the reserved portion.
In addition to the reserved portion, Austrian law also provides for various types of will substitutes, such as donation agreements and private foundations, which allow the transfer of property upon death outside the probate process. However, the legal entitlement of close relatives to a reserved portion takes precedence over these will substitutes.
To summarise, the reserved portion in Austrian law ensures that mandatory heirs, such as children and spouses, receive a specified share of the estate, even if it differs from what is outlined in the will. This portion cannot be freely disposed of by the testator and serves as a protection for these heirs.
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The reserved share may be reduced if the entitled person had no close family relationship with the deceased
In Austria, the concept of a "reserved portion" or "compulsory portion" is an essential aspect of inheritance law. This portion represents the share of the estate that is legally protected for specific individuals, namely the children (including adopted children) and the spouse of the deceased. The reserved portion ensures that these individuals receive at least half of what they would have been entitled to if there had been no will or if the deceased had not donated their assets before death.
However, it is important to note that the reserved portion may be subject to adjustments under certain circumstances. One such circumstance is when the entitled person did not have a close family relationship with the deceased. In these cases, Austrian law allows for a reduction in the reserved share. This provision recognises that the absence of a close family relationship may diminish the entitled person's claim to a significant portion of the estate.
The determination of a close family relationship is based on the nature and duration of the relationship. If the entitled person and the deceased had little to no interaction or if their relationship had ceased to exist for an extended period (approximately 20 years), it could be deemed that a close family relationship did not exist. In such cases, the court may decide to reduce the reserved share, acknowledging that the entitled person's lack of proximity to the deceased diminishes their claim to a substantial inheritance.
It is worth mentioning that the reserved portion is not solely determined by the existence or absence of a family relationship. Austrian law also takes into account the financial needs and circumstances of the entitled individuals. For example, if the surviving spouse or children are already financially secure, the court may decide to reduce their reserved share accordingly. Conversely, if they are in dire financial straits, the court may uphold or even increase their share to ensure their well-being.
Additionally, it is important to understand that the reserved portion is not set in stone and can be influenced by other factors. For instance, if the deceased made substantial gifts to certain individuals during their lifetime, these gifts may be subject to additions or imputations on the reserved portion. The value of these gifts at the time they were given is a critical factor in determining whether they impact the reserved portion.
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The reserved portion is only applicable to Austrian citizens
Austrian law dictates that every natural person may make a will. This means that both Austrian citizens and foreigners can create a will in Austria. However, Austrian inheritance law is primarily applicable to Austrian citizens only. In the case of foreigners, if the legal provisions of their country of citizenship refer back to Austrian law, then Austrian inheritance law can be applied to them as well.
The reserved portion, also known as the compulsory share or reserved share, is a part of the assets that cannot be freely disposed of by the testator. It is a concept in Austrian law that ensures that a certain portion of an estate is reserved for close relatives, specifically the children (including adopted children) and spouse of the deceased. This reserved portion guarantees that these relatives receive at least half of what they would have received if the deceased had died without a will (intestate). If there are no children, the parents of the deceased are entitled to a reserved portion of one-third of what they would have received in the case of intestacy.
The reserved portion restricts the degree of testamentary freedom and ensures that mandatory heirs receive their rightful share of the estate. It is important to note that siblings, nephews, nieces, unmarried partners, and parents are not entitled to the reserved portion. Therefore, individuals without a spouse or children can freely dispose of their assets without concern for the reserved portion.
While Austrian law allows individuals the freedom to decide whom to appoint as heirs in their will, this freedom is limited by the reserved portion. The testator can distribute the remaining estate, known as the disposable portion, to other persons as they wish. However, it is essential to be aware of the formal requirements for creating a valid will in Austria, such as having it written, signed, and witnessed, to ensure that one's wishes are properly executed.
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Frequently asked questions
The reserved portion, also known as the compulsory portion, is a part of the assets that are reserved for the children and spouse of the testator. This portion cannot be freely disposed of and limits the freedom to make a will.
Only the children (including adopted children) and the spouse of the testator have a right to a reserved portion. In the absence of children, the parents of the testator inherit, but their reserved portion is only one-third of the intestate portion.
Yes, it is possible for foreigners to make a local will in Austria. However, it is not possible to write a will by proxy, and certain formal requirements must be observed.
There are three methods of making a valid will in Austria:
- Holographic will — the entire text is handwritten and signed by the testator.
- Non-holographic will — the will is executed in the presence of three witnesses and signed by the testator.
- Public will — the will is executed by a notary or a court.
In the absence of a will, the estate will be distributed according to the laws of intestate succession. The order of precedence for succession is that the children (or grandchildren) will inherit two-thirds of the entire estate, while the spouse inherits one-third.
