The deceased had debts. Do I have to disclaim the inheritance?
Your co-pilot in inheritance law
Mag. Nevena Shotekova-Zöchling
Attorney in Vienna · 16 years of legal practice · Inheritance law
The reminders are always on top. The assets are underneath.
The pile
The father has died. In his flat, his daughter finds a pile of letters: reminders from the bank, an unpaid credit card statement, letters from a debt collection agency. Her first thought: “I’ll disclaim. I want nothing to do with this.”
Before she signs at the notary’s, she comes to us. Our advice: don’t rush. Instead of disclaiming, she submits a conditional declaration of acceptance. That way she can lose at most what she inherits, but none of her own money.
The notary draws up an inventory. And in it appears what nobody had thought of in all the stress: a building society savings contract and a share in a flat.
The reminders were on top of the pile. The assets were underneath.
The debts are paid from the estate. What remains belongs to the daughter. Had she disclaimed straight away, it would have been lost to her, and for good.
The lesson: don’t disclaim out of fear. First the overview, then the decision.
What the law says
- Nobody inherits automatically. Anyone who wants to inherit submits a declaration of acceptance in the probate proceedings before the notary (court commissioner). Only with the court’s final transfer of the estate (Einantwortung) do you become heir.
- Unconditional declaration of acceptance: you are liable for the deceased’s debts without limit, including with your own assets (section 801 of the Austrian Civil Code, ABGB).
- Conditional declaration of acceptance: an inventory is drawn up and you are liable only up to the value of what you inherit (section 802 ABGB). The inventory costs something, but protects against nasty surprises.
- Disclaimer: it is final. The share goes to the next persons entitled, often your own children. Then the question arises again for them.
- Over-indebted estate: if the assets do not cover the debts, there are specific routes, such as handing over the estate in lieu of payment for small estates, or insolvency proceedings over the estate.
- Life insurance: if a beneficiary is named, the insurance payout generally does not form part of the estate. Creditors in principle cannot reach it.
What you should do now
- Don’t rush. Do not sign a disclaimer before you have an overview.
- Get an overview: accounts, land register, savings contracts, insurance policies, securities, and on the other side loans, reminders, unpaid bills.
- If in doubt, accept conditionally. Then your own assets are protected.
- Disclaim only with a clear picture, and with an eye on who comes next.
An inheritance with debts?
We create the overview before you sign anything. Inheritance law and insolvency law from a single source. Initial assessment within 48 hours on working days; the first consultation is free of charge.
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