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Last will

#Form

Mind the inheritance law reform 2015: If a will executed on 1. 1. 2017 or later is not entirely written by the hand of the testator, the latter must confirm by his or her signature and in a handwritten comment before three witnesses that it is his or her last will. The witnesses must sign with a handwritten addendum disclosing their capacity as a witness and be identifiable by indication of their particulars (date of birth, address). If this is missed, the will is not valid.

#Emergency will

A will can be established orally only if the testator perceives imminent danger which may cause his or her death or loss of his or her capacity to execute a will. Under these circumtances two witnesses instead of three suffice. Such emergency will stays valid only for three months from vanishing of the danger.

#Choice of law

From 17. 8. 2015 on a new inheritance law regulation will come into force in Europe: Then, basically, estates will be handled under the laws of, and by the courts of, that state in which the deceased has had his habitual residence at the time of death. Where the deceased possesses the nationality of another state, he may choose that law to govern his succession as a hole. A choice of law already made so in a will is to be considered from 17. 8. 2015 on. Example: A British citizen residing in Austria can choose UK law for to evade Austrian forced heir-ship rules.

#Executer of a will

Under Austrian law, an executer appointed in a will has in fact no administrative powers if his position is disapproved by the beneficiaries unanimously.

Forced heir-ship

#Parents

Mind the inheritance law reform 2015: Parents do not have forced heir-ship rights.

#Spouse/registered partner

Mind the inheritance law reform 2015: If the deceased leaves descendants, his spouse or registered partner takes on intestate grounds one third, but when competing with parents two thirds of the estate.

His or her forced heir-ship quote represents half of the intestate share.

#Accountability of donations inter vivos

Mind the inheritance law reform 2015: From 1. 1. 2017 on donations or benefits of any kind account for the computation of a forced heir-ship claim (to be added to the estate and deducted from the claim) unless ordered in the last will or agreed in the contract otherwise.

#Waiver of right to inherit

A pre death waiver of the right to inherit or to realize forced heir-ship claims requires the execution of a notarial deed.

#Statute of limitation

Basically, the statute of limitation for forced heir-ship claims runs three years from the disclosure of a last will.

#Homecare

Be aware of the inheritance law reform 2015: From 1. 1. 2017 on family members or their family members can claim a fair compensation from the estate for nursury care provided within 3 years until the death for at least 6 months more than 20 hours per week (statutory claim for home care).

#Unknown assets

By means of legal and administrative cooperation the surrogate’s court can force even Swiss banks to disclose confidential bank accounts’ information.

# Piercing of legal veils

Even private foundations can be cracked.

Important change by the inheritance law reform 2015: From 1. 1. 2017 on even donations to a private  foundation or the appointment as a beneficiary accounts for forced heir-ship computation (to be added to te estate and deducted from the claim).

Procedure

#Inheritance action

A probate issued from the surrogate’s court does not bar the filing of a separate action to enforce inheritance rights on a better legal title.

#Lawyers

In court proceedings on contesting inheritance rights the parties can be represented by lawyers admitted to the bar only. If the net assets of the estate exceed the amount of € 5.000,00, the parties must be represented by a lawyer.

#Notary publics

Only the notary public entrusted so by the law, can handle the estate as the so called court commissioner. A notary public representing a beneficiary acts in the capacity of an attorney and does not hold an office in the proceedings.

#Disclose of accounts

Basically, in a surrogate’s court procedure, banking secrecy laws are set aside.

#Life insurance

A life insurance policy contracted to the benefit of a certain person, or not in the possession of the deceased, passes on out of probate.

Private foundation

#Competition of jurisdictions

Liechtenstein beats Austria’s private foundation law.

#Dismissal procedures

Beneficiaries need not resign to unfaithful directors.