Lifetime gifts can raise or reduce the compulsory portion considerably. Why it pays to examine crediting and deadlines early instead of waiting for the proceedings to end.
Mag. Bernhard Brandauer
Attorney · BRANDAUER Rechtsanwälte, Salzburg
Inheritance matters are handled by Mag. Bernhard Brandauer together with a coordinated team. We examine the will, compulsory portion, gifts and deadlines and tell you clearly where you stand.
Many testators arrange their assets during their lifetime by transferring a property or signing an account over to a child. What looks generous quietly shifts the compulsory portion claims. Anyone who only calculates after the death easily overlooks that such gifts raise or reduce the compulsory portion.
This article shows why it pays to record and legally classify gifts early. The evidence for them often dates back years and is hard to reconstruct after the death.
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Gifts work in both directions: they can raise or reduce the claim.
Gifts to persons entitled to a compulsory portion are added back without a time limit, gifts to third parties generally only within two years before death. Both run through the crediting of gifts and can move the claim noticeably.
An early calculation secures evidence and uses the three-year deadline.
Not every transfer is a creditable gift. Customary occasional presents and gifts for charitable purposes are not added back. The line can be difficult in an individual case, because occasion and value matter.
For larger benefits it is worth checking whether the exception really applies.
If a compulsory portion is asserted against you, the basis and amount should be examined. Benefits you yourself gave to the claimant reduce their claim through crediting. The valuation of the estate and the gifts is often open to challenge too.
A well-founded counter-calculation creates room for an out-of-court solution.
The compulsory portion is not measured solely by the assets still present at death. Certain gifts are added back to the estate before the share is calculated. This adding back is called crediting of gifts and can noticeably raise the claim of a child who was passed over.
Conversely, a person entitled to a compulsory portion must allow what they themselves received during the testator’s lifetime to be credited against their claim. The two directions together decide the final amount, which is why a one-sided view almost always misleads.
Gifts to persons entitled to a compulsory portion are added back without a time limit. Gifts to third parties are generally taken into account only if they were made within the last two years before the death. This distinction often decides whether a claim has real value or runs empty.
Not every transfer is a creditable gift. Customary occasional presents and gifts for charitable purposes are disregarded. The line is demanding in detail because occasion, value and circumstances all matter.
The compulsory portion claim becomes time-barred three years after knowledge of the facts giving rise to the claim and of the debtor. Anyone who waits too long risks that even a claim that is justified in amount can no longer be enforced.
Early review also creates room to negotiate. Those who can prove their claim negotiate from a stronger position and often avoid court proceedings. A well-founded assessment is therefore usually cheaper than a late dispute over unclear figures.
In inheritance law, deadlines and evidence decide. Call us directly or send an email, callback within one business day.
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