Section 685 of the Austrian Civil Code explains when a legacy can be claimed and when the one-year limit applies to cash legacies and missing items.
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.
Unless the will provides otherwise, a legacy is to be performed at once upon the testator's death. Section 685 of the Austrian Civil Code sets a special limit for cash legacies and for items left by will that are not in the probate estate: they can be claimed only after one year has elapsed since the death.
A reliable assessment brings together the date of death, the type of legacy, the wording of the will and the stage of the probate proceedings. The creation of the legacy right, the earliest time for making the claim and the question of who must perform are related, yet separate issues.
Start by classifying the benefit as money, an estate item or an unresolved probate issue.
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The type of benefit determines whether the one-year rule in section 685 of the Austrian Civil Code is central.
For a cash legacy, section 685 of the Austrian Civil Code is the starting point. A legacy is generally to be performed at once, yet a cash legacy can be claimed only after one year has elapsed since the testator's death. Put the date of death, the will and the possible claim date on one timeline.
For an item found in the estate, the special one-year rule in section 685 of the Austrian Civil Code does not operate in the same way as it does for a cash legacy. Performance is generally due at once. Check the exact wording, the item's existence and the rules on interest, benefits and burdens as separate issues.
If the item is missing from the estate or it is unclear who must perform, an heir's declaration of acceptance does not answer every question. Section 685 of the Austrian Civil Code also sets a one-year limit for items that are not in the estate. Section 649 classifies the claim first against the estate and, after the transfer of the estate, against the heirs.
Section 685 of the Austrian Civil Code contains a general rule and two special categories. Unless there is doubt about the testator's intention, the legacy is to be performed at once upon death. A cash legacy and a legacy of an item that is not in the probate estate can be claimed only after one year has elapsed since the death.
The provision therefore addresses two connected questions. Section 684 generally links the acquisition of the legacy right to the testator's death. Section 685 adds a separate rule for the earliest time at which certain legacies may be claimed. The date on which the right arises must therefore be kept distinct from the earliest date on which a payment or performance demand can be enforced.
The words "unless there is doubt" leave room for the actual wording of the will. A condition, a specified performance date or a special instruction can affect the interpretation. The complete will and every amendment should therefore be reviewed first.
For a cash legacy, the one-year period starts on the testator's date of death. The beneficiary may claim the cash legacy under section 685 only after one year has elapsed. The exact date of death and the classification of the benefit as money or another form of performance must therefore be established.
Section 685 applies the same time limit to an item left by will that is not in the probate estate. A missing item and a cash legacy are different legal categories, while the statute assigns the same one-year limit to the making of the claim. Whether an item is actually missing should be checked against the inventory, its custody and the heirs' information.
A letter sent before the end of the one-year period can document the facts and request records. Its legal effect must be kept distinct from the special rule on when the legacy can be enforced. In an ongoing dispute, an exact review of dates and procedure is therefore important.
Section 649 classifies the legacy debt as a claim against the probate estate and, after the court transfers the estate, against the heirs. The procedural stage therefore matters for identifying the debtor. It does not change merely because a person has filed a declaration of acceptance or describes themselves as an heir.
A declaration of acceptance and the court transfer of the estate serve different functions. The declaration states the person's position on accepting the inheritance. The transfer of the estate marks the court decision to which section 649 links the claim against the heirs. A payment demand should therefore state which decision has been issued and whether the estate has already been transferred.
Section 685 remains relevant to the due date. Even after the estate has been transferred, a cash legacy requires a check of the one-year limit. Conversely, the end of one year does not resolve the wording of the will, heirship or the scope of performance.
The benefit and the probate stage determine the next review step.
| Starting point What was left? | Timing Which limit applies? | Next review What must be shown? |
|---|---|---|
| Legacy unless the will shows otherwise | Performance generally due at once after death | Review wording, conditions and the benefit. |
| Cash legacy | Claim only after one year has elapsed since death | Calculate the date of death and the end of the one-year period. |
| Item left by will is missing from the estate | Claim only after one year has elapsed since death | Clarify inventory, custody and the item's existence. |
| Claim against estate or heirs | Section 649 links the debtor to the court transfer | Separate the transfer decision from a declaration of acceptance. |
The table cannot replace interpretation of the will or review of the probate file.
A reliable timeline starts with the date of death. Then record the wording of the legacy, the type of benefit, the end of the one-year period, declarations of acceptance, the court transfer and earlier demands in that order. This makes it possible to see whether the problem is a missing record, a calculation error or an unresolved procedural step.
Where there are several heirs, the claim must also be directed to the probate estate or to the heirs after transfer. Section 649 generally provides for joint and several liability among the heirs and refers to their shares for the internal allocation. The will may, however, assign performance to a particular co-heir or beneficiary.
The timeline also supports staged communication. First request the will, inventory and procedural records. Then quantify the claim using the correct date and addressee. The article on securing a cash legacy when heirs do not pay addresses the related security and estate-liquidity questions.
The first review requires the complete will together with every amendment and attachment. Mark the benefit, the item or amount, any condition and every provision on the time of performance. A single extract without its context can distort the interpretation.
Proof of timing includes the death certificate or another reliable record of death, the calculation of the one-year period and correspondence with the estate or heirs. For an item legacy, add the inventory, photographs, custody records, valuations and indications that the item was moved.
Also organise declarations of acceptance, the court transfer decision and any agreements among the heirs. If the dispute includes an allegation against a participant, review the relevant documents separately. The article on inheritance unworthiness and evidence concerns a different legal issue, yet it illustrates why allegations and provable facts should be kept apart.
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