Probate proceedings without assets: discontinuance and creditor options

Section 153(1) AußStrG lists cases in which the administration is omitted when no application to continue the probate proceedings is made. They include missing assets and assets with a value not exceeding EUR 5,000. The statutory wording is omission of the administration. The everyday term “discontinuance” therefore needs to be understood within this specific legal mechanism.

The provision also covers succession by operation of law where the applicable law requires no entry in public registers. The first review therefore needs a reliable asset overview and information on whether real estate or another registrable right is involved. Section 153(1) does not require a notification in these cases.

Section 153(1) makes omission conditional on the absence of an application to continue. Anyone who considers further court administration necessary should therefore identify the concrete reason and organise the current file. Unknown assets, unresolved rights and an unclear succession position belong in that review.

For succession governed by Austrian law, section 153(2) AußStrG also provides for a court authorisation. The court may authorise persons whose claim is evidenced by the file to take all or part of the estate, exercise or waive related rights, issue effective receipts for benefits and make deletion declarations. This authorisation is distinct from distribution among several creditors.

An assetless estate and an overindebted estate start from different facts. In an overindebted estate, assets exist, but their realisable value is not expected to cover the debts. Section 154(1) AußStrG permits the court, on application, to transfer the assets to the creditors where Austrian succession law applies.

Section 154 excludes the application where an unconditional declaration of acceptance or an application to treat the estate as ownerless already exists, or where estate insolvency proceedings have been opened. These matters must be checked before choosing the route. Section 154(2) describes the distribution order: first by analogous application of sections 46 and 47 IO, then to the deceased person’s legal representative where amounts were awarded by order, and finally to the other creditors in proportion to their undisputed claims or claims evidenced by reliable documents.

Before a transfer in lieu of payment, section 155(1) AußStrG provides for notification where the value of the assets is expected to exceed EUR 5,000. The court commissioner notifies creditors recorded in the file and persons recorded as possible heirs or compulsory portion claimants, where their whereabouts are known. They are given an opportunity to comment.

Where the value is expected to exceed EUR 25,000, the estate creditors must be called under section 155(2) AußStrG. Under section 155(3), the transfer order must state the items transferred, the recipients, the claims to be settled and any further information required for registration. The asset value alone therefore does not determine the permissible procedural step.

Section 174 AußStrG concerns creditor rights in a call under sections 813 to 815 ABGB. If an oral hearing is scheduled, the court commissioner publicly announces the date. The commissioner summons prospective heirs, compulsory portion claimants and, where relevant, appointed estate curators and executors.

At the hearing, the court commissioner works towards agreement on the claims filed. This procedure presupposes a call to the estate creditors and must be distinguished from section 153(1) AußStrG. For a genuinely assetless estate, the first question is therefore whether there are assets and a creditor procedure at all.

For the assessment, record assets, estate debts, payments already made and open claims in separate positions. For real estate, obtain land-register information, record encumbrances and check whether a registration step is required. For claims, identify the legal basis, amount and available evidence.

Estate separation serves a different purpose. It may matter where estate assets must be protected from being mixed with an heir’s own assets. The article on estate separation in an inheritance dispute addresses that protective route. If several claims compete for an insufficient estate, see legacy and compulsory portion where the estate is insufficient. The procedural framework is set out on the probate proceedings focus page.