Inheriting debts in Austria: Should I accept the inheritance conditionally or unconditionally?
Author: Mag. Nevena Shotekova-Zöchling, Attorney and insolvency administrator in Vienna · Under Austrian law, with an unconditional declaration of acceptance of the inheritance (unbedingte Erbantrittserklärung) you are personally liable for all debts of the deceased, even if the estate is insufficient (§ 801 ABGB). With a conditional declaration of acceptance (bedingte Erbantrittserklärung), an inventory (Inventar) is drawn up and you are liable only to the extent of the estate (§ 802 ABGB). The declaration is irrevocable (§ 806 ABGB) – where the financial situation is unclear, the conditional declaration is usually the safer route.
Key facts
- In Austria, an heir who makes an unconditional declaration of acceptance is personally liable for all debts of the deceased, even if the estate is insufficient (§ 801 ABGB).
- With a conditional declaration of acceptance, an inventory is drawn up and the heir is liable only up to the value of the estate (§ 802 ABGB).
- A declaration of acceptance or disclaimer of an inheritance is irrevocable (§ 806 ABGB).
- The costs of the inventory in a conditional acceptance are borne by the estate, not by the heir personally (§ 802 ABGB).
- A disclaimed share of the inheritance is credited against the monetary compulsory share (§ 780 ABGB).
Conditional, unconditional or disclaim?
| Unconditional | Conditional | Disclaimer (Ausschlagung) | |
|---|---|---|---|
| Liability | unlimited, including with your own assets | limited to the value of the estate | none |
| Inventory | not mandatory | mandatory, at the estate's expense | – |
| Inheritance | yes | yes | no, the share passes to the next in line |
The conditional declaration makes the proceedings somewhat more laborious, because the court has an inventory drawn up. Under § 802 ABGB, the costs of this are borne by the estate (Verlassenschaft), not by you personally.
Worked example
Estate: apartment € 180,000, bank account € 10,000. Later, a guarantee loan (Bürgschaftsdarlehen) of € 250,000 comes to light.
| Declaration | Result for the heir |
|---|---|
| Unconditional | liable for the € 60,000 shortfall with their own assets |
| Conditional | liable only up to the estate value of € 190,000; the creditors bear the shortfall |
| Disclaimer | receives nothing, not liable |
Without the later guarantee, on the other hand, the conditional declaration would have brought the full estate. That is exactly its advantage: you do not need to know the full debt situation when accepting.
The typical mistake: disclaiming by reflex
Many relatives disclaim as soon as they hear of debts. It often turns out later that real estate, life insurance policies or bank balances exceed the debts. The disclaimer is irrevocable (§ 806 ABGB), and the share then usually passes to your children or other relatives, who in turn have to decide.
Conversely, the unconditional declaration is also dangerous if it is chosen only to speed up the proceedings.
Time limits and over-indebted estates
The court commissioner (Gerichtskommissär) asks the potential heirs to make their declaration. The time limit is at least four weeks; for important reasons, a period for consideration of up to one year is possible (§ 157 AußStrG).
If the estate is clearly over-indebted, two routes come into consideration: surrender of the assets to the creditors in lieu of payment (Überlassung an Zahlungs statt), provided nobody has accepted unconditionally (§ 154 AußStrG), or insolvency proceedings over the estate. Both protect the relatives' own assets.
Frequently asked questions
Can I later switch from unconditional to conditional?
No, § 806 ABGB expressly rules this out.
Do I also inherit tax debts or loan debts?
Yes, in principle all financial liabilities pass to the heirs.
Do I also lose my compulsory share if I disclaim?
Not automatically. However, the disclaimed share of the inheritance is credited against the monetary compulsory share (§ 780 ABGB). A compulsory share claim therefore remains only to the extent that the disclaimed share was smaller than the compulsory share. Clarify this before making the declaration.
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This article gives a general overview of Austrian law and does not replace advice on your individual case.