Inheriting real estate: This is how your apartment and house are passed on correctly

Notary Ulrich Voit has answers to the most important questions.

Who inherits the property through legal succession and if there is no will?

If there is no will, legal succession occurs. The testator’s descendants inherit in the first line. In addition to a spouse or a registered partner, descendants inherit 2/3 of the estate, 1/3 is inherited by the spouse or a registered partner. If there are no descendants and no spouse or registered partner, the testator’s parents inherit equally. If the parents also predeceased, but there is a spouse or registered partner, they would be sole heirs. If there are no descendants, parents, spouse or registered partner, the descendants of the testator’s grandparents inherit according to tribes. The legal heirs generally inherit real estate together to the extent of their quota, although special rules apply to residential property.

Who is entitled to a compulsory share?

Descendants and the spouse or registered partner are entitled to a compulsory portion. These people are entitled to a share in the estate of a deceased person. The compulsory share is half of the inheritance share (this is the share of the inheritance provided for by law).

How is the inheritance of a property divided if: a) There is a spouse? b) There is no husband but one or more children? c) There is a spouse and a child? d) There is a spouse and two or more children?

First of all, a distinction must be made: Is it a property or a condominium property? In the case of a property – unless the heirs have agreed otherwise – the inheritance quota is the share in the property. In the case of a condominium, the share in the property increases to the condominium partner. If there is no home ownership partner, the heirs must agree on a maximum of two co-heirs who will take over the apartment or sell it before taking responsibility for the estate.

What is the difference between inheritance cases with a will and without a will?

If a will has been drawn up in the correct form, there will be no legal succession. Sometimes a will appoints one or more heirs and at the same time also leaves legacies to certain people. This means that (individual) estate items can also be suspended for legatees.

Can you explicitly pass on a property to a person?

A property can be “bequeathed” to a specific person, for example through a legacy. The remaining assets can be distributed among the other heirs. Example: The testator had three children and a condominium and cash assets. She named her three children as heirs, but ordered that one child should receive the condominium and the other two children should receive the remaining estate assets in equal shares.

According to the will, a child is supposed to inherit a property, but there are other people entitled to a compulsory share who are not awarded anything: What if you cannot pay out the compulsory share?

In this case, one child receives the property and there are no remaining assets to cover the compulsory portion, so those entitled to the compulsory portion have a claim to the compulsory portion. The compulsory share rate for three children is 1/6 each. To put it simply, that child must pay out a third of the market value of the property to the siblings, who are each entitled to 1/6 of the compulsory share. Despite the possibility of deferring a claim to a compulsory share for a maximum of ten years in special circumstances, in the worst case the property could be sold if the compulsory share cannot be paid. It should be noted that statutory interest of 4% pa applies for the deferral period.

If children give up their compulsory share or inheritance, can they later claim their compulsory share or inheritance?

If a claim to an inheritance or a compulsory share has been legally waived, a claim to an inheritance or a compulsory share can no longer be claimed.

As a testator, how do you divide properties of different values ​​between children?

The first question to be asked is whether there is a basis for discussion within the family and whether an amicable settlement is therefore possible. The premise should be to look for solutions that everyone involved can handle well. A proportionate takeover of the properties can be an option, as can a takeover by an heir alone or a consensus about use or exploitation in the future.

Who assesses the value of a property?

Real estate can be included in the estate’s list of assets with three times the standard value. If a party to the probate process submits an application or if it is necessary in the interests of a person entitled to protection, a property will be valued by a court-sworn expert. The reference date is the date of death. If the property was transferred as a gift during your lifetime, it must be valued at the time of the donation. The value determined must be increased to the date of death using the consumer price index published by Statistics Austria.

Are there differences when inheriting a house or apartment? Which?

In principle, several people can own a property. In the case of condominium properties, a maximum of two natural persons can own property.

How do you prevent disputes between heirs?

In most cases, disputes do not only begin in the context of an inheritance. It is therefore advisable to have an idea of ​​the basis of the conversation in a family. Solutions can then be discussed in order to find a course of action that is in the interests of those involved and avoids costly legal clarification. Mediation is also an option.

A testator has two properties of different value – can he give them to one of the two heirs?

Yes, the testator is allowed to dispose of his property freely. However, the compulsory portion law must always be observed.

In which cases should one refuse to inherit the property?

For example, if it is possible that there are liabilities. Or if I want to save myself a fight. There is no deadline for a declaration of renunciation. Rather, the court commissioner must give the heirs a reasonable deadline for accepting the inheritance. If this period expires without result, the potential heir will no longer be involved in the proceedings.

What effects do prohibitions on encumbrances and sales or usufruct rights have?

Reserved prohibitions on encumbrances and sales or usufruct rights restrict the heir’s ability to dispose of the property, provided that these remain in effect despite the death of a beneficiary. Otherwise, these can be deleted from the land register as irrelevant.

Inheriting or giving: Which is cheaper?

The Real Estate Transfer Tax Act considers both legal transactions to be free of charge and therefore does not differentiate between whether a property was inherited or given away.

Can a property be inherited by minors?

Yes. As a rule, real estate can only be sold as part of asset management by those entitled to custody under special conditions and subject to court approval.