What happens when a declaration of acceptance of inheritance is submitted after heirship was determined, and when an inheritance claim must be pursued by action.
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.
A late declaration of acceptance of inheritance leads to two different procedural routes under section 164 of the Austrian Non-Contentious Matters Act. If it is filed after heirship has been determined but before the court is bound by the order of devolution, the heirship proceedings must be conducted again under the rules for competing declarations of acceptance. After that procedural point, inheritance claims can only be asserted by action.
The exact procedural position is therefore decisive. Calling a declaration “late” does not by itself determine the available route. The relevant records are the court decision, the filing date of the new declaration, and the point at which the court became bound by the order of devolution.
This short assessment separates renewed proceedings, a later court action, and the need to review the file first.
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The key points are the determination of heirship and whether the court is already bound by the order of devolution.
Section 164 of the Austrian Non-Contentious Matters Act provides for renewed proceedings under sections 160 to 163 when the declaration is submitted before the court is bound by the order of devolution. The new declaration, the earlier heirship decision, and the procedural timeline should be reviewed together.
After the procedural point described in section 164, inheritance claims can only be asserted by action. Before choosing this route, the claim, the parties, and the effect of the earlier decision must be examined carefully.
A reliable assessment requires the date of the heirship decision, the filing date of the new declaration, and the point at which the court became bound by the order of devolution. These points should be checked against the file and service records.
Section 164 addresses a specific situation: heirship has already been determined and a party then submits another declaration of acceptance of inheritance. If the court is not yet bound by the order of devolution, the Act provides for renewed proceedings under sections 160 to 163.
The further assessment therefore depends on whether the court is bound by the order of devolution. A general reference to devolution or to the date of death is insufficient. The file must show which decision was made and what procedural step remained possible at the relevant time.
If the new declaration is submitted before the court is bound by the order of devolution, the inheritance dispute is dealt with again under sections 160 to 163. Section 164 also permits the declaration of acceptance that formed the basis of the earlier heirship decision to be rejected.
The earlier determination of heirship is therefore not automatically the final point of review. The new declaration must be placed in the existing procedural record. Its wording, the evidence offered, and the earlier declarations all matter for that assessment.
For competing declarations of acceptance, section 160 requires the court commissioner first to seek recognition of heirship between the parties. If this does not succeed, the file is submitted to the court. The new declaration is therefore handled within the probate proceedings rather than as an informal issue outside the file.
Under section 161, the court determines the heirship of the persons entitled within the scope of the parties’ submissions and evidence, and rejects the other declarations. The decision may be issued separately or together with the order of devolution. The file shows which form was chosen.
For the period after the procedural point set out in section 164, inheritance claims can only be asserted by action. The later declaration is then no longer simply added to the earlier procedure under sections 160 to 163.
The review shifts to the specific legal claim and the appropriate form of proceedings. The earlier heirship determination, the order of devolution, and the new declaration must be assessed together. A claim therefore cannot be based solely on the fact that a person submitted a declaration at a later stage.
For the timeline, collect the decision on heirship, the order of devolution or its draft, the new declaration of acceptance, and proof of filing. Add service records, submissions by the court commissioner, and notices from the court.
Arrange the documents chronologically. Record separately when heirship was determined, when the new declaration was filed, and what status the order of devolution had at that point. This makes it possible to assess the route between renewed proceedings and a court action.
How competing declarations are assessed in Austrian probate proceedings.
The key questions when heirship is disputed after devolution.
Procedural position, declarations of acceptance, and the estate at a glance.
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