My brother lives in the USA and wants to sell our parents’ house in Vienna immediately. I want to keep it. What now?
Your co-pilot in inheritance law
Mag. Nevena Shotekova-Zöchling
Attorney in Vienna · 16 years of legal practice · Inheritance law
The auction was his threat. And his biggest risk.
Sell or keep
The parents leave a house on the outskirts of Vienna, half each to their two children. The sister lives nearby. Her children grew up here; every Sunday everyone was in the garden. The brother has lived in the USA for decades. He wants to sell, immediately. “I need the money, not the house.”
When the sister does not want to sell, the threat comes: “Then I’ll sue for partition.” She is afraid this will cost her the house.
The auction was his threat. And his biggest risk.
A house cannot be physically divided. A partition action therefore usually ends in a court auction. It takes time, costs money and often brings in less than a normal sale. That is exactly what the brother wanted least: to wait a long time and get less in the end.
We negotiated, with him in America by video. An expert valued the house. The sister took over her brother’s half, financed by her bank, set out in an agreement on the division of the estate while the probate proceedings were still running. The brother had his money within a few months, faster than with any auction. The sister has her house.
The lesson: both wanted the same thing, their share. Just in a different form. Once you see that, you don’t need a court.
What the law says
- During the probate proceedings the house still belongs to the estate. The heirs can, however, agree who gets what (agreement on the division of the estate). The house is then registered directly in the name of the heir taking it over.
- Without an agreement both become co-owners after the transfer of the estate, half each. You then decide on the house jointly; neither can sell alone.
- Partition action: every co-owner can in principle demand that the co-ownership be dissolved (section 830 ABGB). If physical division is not possible, as with a family home, the court orders an auction. The proceeds are divided.
- No immediate compulsion: a partition at an inopportune time or to the detriment of the others can be temporarily resisted. As a rule, it cannot be prevented permanently.
- Valuation: the basis for any fair solution is an expert valuation of the market value. Whoever takes over pays the other out on that basis.
- Taxes and fees (real estate transfer tax, registration fee) should be calculated in advance. It can make a difference whether the division takes place in the probate proceedings or only afterwards.
What you should do now
- Don’t react to threats; put the figures on the table: value, financing, timetable.
- Obtain a valuation report that both accept.
- Clarify financing with the bank before you make an offer.
- Record the agreement while the probate proceedings are still running. Your brother does not have to travel; a certified power of attorney is enough.
A dispute over your parents’ house?
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