Section 750(2) of the Austrian Civil Code addresses a specific situation: an estate is located in Austria, succession is governed by foreign law and no person acquires the estate.
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.
An estate may be located in Austria even though succession is governed by the law of another state. For this cross-border situation, Section 750(2) of the Austrian Civil Code contains a specific rule: the Federal Government may acquire the estate if it passes neither to a person or legatee appointed by a disposition upon death nor to a natural person as statutory heir.
Each condition must be examined carefully. A foreign connection alone does not automatically lead to state acquisition, just as the absence of an immediately known heir does not settle the matter.
Answer a short question about the Austrian connection, possible acquirers or foreign succession law.
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First sort the Austrian connection, the possible acquirers and the applicable foreign succession law.
Section 750(2) of the Austrian Civil Code requires the estate to be located in Austria at the time of death. For an initial assessment, the Austrian assets and their position at that time should therefore be recorded in a traceable way.
The Austrian connection alone does not answer the question. It must also be examined whether an appointed person, a legatee or a natural person as statutory heir acquires the estate.
The provision distinguishes between an heir or legatee appointed by a disposition upon death and a natural person as statutory heir. These groups must be established separately before state acquisition under Section 750(2) can be assessed.
Uncertainty about the succession therefore does not by itself mean that the Federal Government has a right of acquisition. The will, legacies and family connections should be examined in full.
Section 750(2) expressly also covers an estate where succession is not governed by Austrian law. Foreign law does not replace the other conditions. It must be established whether an heir or legatee exists under that law and whether a natural person is a statutory heir.
The will, nationality and relevant cross-border facts should be considered together. A general statement about the law of another state is not enough for the specific classification.
Section 750(2) of the Austrian Civil Code connects three elements. The estate must be located in Austria at the time of death. It must pass neither to an heir or legatee appointed by a disposition upon death nor to a natural person as statutory heir. The rule also applies where succession is not governed by Austrian law.
The provision gives the Federal Government a right to acquire the estate in this situation. The wording describes a specific statutory possibility. It does not say that every cross-border estate automatically passes to the Federal Government. Each condition requires a separate assessment.
The general case in Section 750(1) must be distinguished from this rule. The specific case addressed here depends on the combination of an estate located in Austria and succession governed by foreign law. Treating both paragraphs as identical obscures that distinction.
The statutory rule connects the location of the estate with the absence of acquisition by the persons named in the provision.
| Question What must be established? | Relevance Why does it matter? |
|---|---|
| Was the estate located in Austria at the time of death? | This Austrian connection is the territorial starting point of subsection 2. |
| Is there an appointed heir or legatee? | A disposition upon death may establish the transfer to a specific person. |
| Is there a natural person as statutory heir? | Acquisition by a natural statutory heir must also be included in the assessment. |
| Which law governs succession? | Subsection 2 remains relevant under foreign law, but the foreign succession must first be established. |
The table presents Section 750(2) in an accessible form. Its application depends on the established facts and the applicable foreign law.
The provision focuses on the location of the estate at the time of death. Where an Austrian bank account, real property or a stored valuable is involved, the asset and its location at that time should therefore be recorded. The current residence of relatives does not answer this question.
Preparatory records may include account and land register documents, custody records and documents linking the asset to the deceased. The article on bank safes, home safes and gold in an estate shows why the existence, custody and proof of individual assets should be organised early.
The glossary entry on probate proceedings explains the Austrian framework in which the relevant records are brought together. State acquisition remains a separate question governed by the specific conditions of Section 750(2).
The assessment should not be limited to whether relatives are known. Section 750(2) first names an heir or legatee appointed by a disposition upon death. Wills, inheritance contracts and individual legacy provisions must therefore be examined for their content and scope.
The provision also names a natural person as statutory heir. Under foreign succession law, this requires a joint assessment of the relevant family facts and the applicable legal rules. A mere assumption about the group of relatives is not enough.
If Austrian assets and possible acquirers are recorded inconsistently, the result can quickly become contradictory. The glossary entry on the estate inventory explains the value of a structured overview of assets and liabilities. An inventory does not replace the examination of foreign law, but it creates a reliable factual basis.
The second subsection of Section 750 is expressly designed for cases in which succession is not governed by Austrian law. Foreign law is therefore central to the assessment. It must show whether a particular person is appointed as heir or legatee and whether a natural person inherits by statute.
The cross-border facts may include nationality, last habitual residence, a valid choice of law or the contents of a foreign disposition. Which connecting factor applies can be assessed only after the documents and the relevant legal system have been examined. The article on international succession with a connection to Austria covers the broader cross-border classification.
The statutory wording does not say that foreign succession law triggers state acquisition by itself. The decisive combination remains the location of the estate and the absence of a transfer to the persons named in the provision. That connection should be made explicit in any legal assessment.
For an initial legal assessment, organise the facts into four groups: assets in Austria, the time and place of death, dispositions upon death, and information about possible statutory heirs. Where foreign law applies, add the relevant legislation or a reliable legal assessment of the state concerned.
A table can list each asset, its location, the available records and the person said to acquire it. Unclear matters should remain identified as open questions. This makes it possible to distinguish an heir who is absent from an heir who has simply not yet been identified.
If a natural person actually acquires the inheritance, the focus shifts to that person’s legal position and the further handling of the estate. Questions about an heir’s personal debts, such as the share of an estate in personal insolvency, require a separate assessment and do not replace the prior classification under Section 750(2).
The Austrian framework for handling an estate.
Cross-border facts, applicable law and the certificate of succession.
Existence, custody and proof of individual estate assets.
Keep the heir’s personal situation separate from the estate.
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