If the estate is overindebted, the question is between disclaiming and conditional acceptance. How you protect your own assets in Austrian probate proceedings.
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.
Not every estate consists of assets. If what remains after death is mainly loans, guarantees or open claims, the estate may be overindebted. The question then arises whether you should accept or disclaim the inheritance and how you protect your own assets.
This article explains disclaiming, conditional acceptance with an estate inventory and the consequences for the next person in the order of succession. It does not replace advice in an individual case but provides the basis for a conscious decision.
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The answer sorts whether disclaiming, conditional acceptance or first an inventory fits your situation.
Where the estate is plainly overindebted, disclaiming can be the clean route. Anyone who does not make a declaration of acceptance does not accept the inheritance and is not liable for the debts. Bear in mind that the inheritance then passes to the next person in the order of succession.
This keeps your own assets protected, yet you should clarify the consequences for the next persons called in advance.
Where liabilities are possible but not certain, a conditional declaration of acceptance limits liability to the value of the estate. It requires an estate inventory that orders assets and debts.
This lets you accept the inheritance without exposing your own assets to an unclear risk.
Without an overview, an estate inventory should be drawn up before any decision. It records assets and debts as at the date of death and is the basis for disclaiming or conditional acceptance. The court commissioner sets a reasonable deadline for it.
Only with clear figures can you responsibly decide between accepting and disclaiming.
An estate is overindebted when the liabilities of the deceased exceed the available assets. What matters is a comparison of assets and liabilities as at the date of death. An estate inventory makes this situation visible and creates the basis for your decision.
As long as the debt situation is unclear, you should take no hasty steps. Anyone who pays from the estate or disposes of estate items can commit themselves quickly before the figures are settled.
Anyone who disclaims the inheritance makes no declaration of acceptance and does not accept the estate. You are then not liable for the estate debts but also receive no assets from the estate. With clear overindebtedness this is often the clean route.
The consequence matters: if you disclaim, the inheritance passes to the next person in the order of succession. It is worth involving those persons so that the problem is not unintentionally just handed on.
Instead of disclaiming, conditional acceptance can be the better route where the estate might after all have value. With a conditional declaration of acceptance you are liable only up to the value of the estate. The condition is an estate inventory that records assets and debts.
This lets you accept the inheritance without exposing your private assets to an unclear risk. The additional effort for the inventory pays off because it creates a clearly calculable risk.
In inheritance law, deadlines and evidence decide. Call us directly or send an email, callback within one business day.
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