The decisive question is usually where the person who died had their habitual residence. Their nationality, the location of their assets and where their heirs live may still affect the process, but they don’t normally determine the applicable inheritance law.
Austria’s official government portal explains that the deceased person’s citizenship is not normally decisive.
If a non-Austrian EU citizen was living in Austria and had their centre of life here when they died, Austrian courts would generally handle the proceedings and apply Austrian inheritance law.
The same principle can also apply to nationals of non-EU countries who were habitually resident in Austria, according to the Austrian Notaries’ Chamber. However, international agreements between Austria and the other country may have to be considered in individual cases.
“Many people assume that the law of their country of origin automatically applies,” Vienna notary Harald Stockinger said in a press release.
“In fact, habitual residence is decisive in most cases. Particularly where families and assets are spread across several countries, it makes sense to establish clarity early.”
The rule applies in EU member states apart from Denmark and Ireland.
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What counts as habitual residence?
Habitual residence is more than the place where someone happened to be staying when they died.
It generally refers to their main centre of life, known in German as the Lebensmittelpunkt. This could involve where they normally lived, worked and maintained their closest personal connections.
Someone who spent the winter at a holiday home abroad but lived in Austria for the rest of the year would not necessarily be considered habitually resident abroad.
By contrast, an Austrian citizen who had permanently moved their centre of life to another EU country could generally become subject to that country’s inheritance law.
The residence of the heir doesn’t usually change this. An heir living in Austria could therefore inherit under another country’s law if the deceased had their habitual residence there.
Can you choose which country’s inheritance law applies?
A person can state in their will that the inheritance law of their country of citizenship should apply instead. This is known as a choice of law. It allows someone living abroad to retain the inheritance rules of their country of nationality rather than relying on the law of their country of residence.
This choice should be clearly set out in the will.
It can make a considerable difference because national inheritance laws don’t treat spouses, unmarried partners and children in the same way. Rules concerning compulsory shares, which reserve part of an estate for certain relatives, may also vary between countries.
A choice of law doesn’t necessarily mean that courts in the chosen country will automatically deal with the case. Within the EU, the heirs and other affected parties may in some circumstances agree that the courts of the country whose law was selected should handle the proceedings.
What happens when heirs or assets are abroad?
Foreign bank accounts, property or heirs living in another country can make probate proceedings more complicated.
International searches, document translations and legal assistance procedures may cause delays, the Notaries’ Chamber said.
Where the European Succession Regulation applies and the deceased had their habitual residence in Austria, Austrian courts can generally have jurisdiction over movable and immovable assets located in other participating EU countries. Austria’s government advises families with foreign property to discuss the necessary steps with the notary preparing the initial death record.
An heir may also need to prove their status to a foreign bank, authority or land registry.
In these cases, the authority handling the inheritance can issue a European Certificate of Succession. This document can be used to show that someone is an heir, executor or estate administrator.
It is recognised in participating EU countries without a separate recognition procedure. The issuing authority keeps the original and provides a certified copy, which is normally valid for a renewable period of six months.
The simplified EU arrangements don’t apply in the same way to Denmark and Ireland. Cases involving countries outside the EU may also be subject to different national laws or international agreements.
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Does the same rule apply to inheritance tax?
No. The European Succession Regulation determines which country’s inheritance law applies, but it doesn’t regulate taxation.
Any inheritance tax liability depends on the national laws of the countries connected to the deceased, the heirs or the assets. Double taxation agreements may prevent the same inheritance from being taxed more than once.
Austria doesn’t have a general inheritance or gift tax. However, Austrian property transfer tax may still be payable when real estate is inherited or transferred as a gift. Certain gifts must also be reported.
Foreign taxes may still apply, particularly when the deceased, the heir or inherited property is connected to a country that charges inheritance tax.
What should international families do?
People whose family members, citizenships or assets are spread across different countries may want to review their succession plans before a problem arises.
A will can record a choice of law and clarify how the person wants their estate distributed. However, it must be compatible with the rules that ultimately apply.
Austria’s government recommends contacting a notary or lawyer when preparing or reviewing a will involving more than one country.
An initial legal consultation is available free of charge at Austrian notaries. The Notaries’ Chamber also provides an online notary finder, including offices that offer online services or can prepare notarial documents in English.
Key vocabulary
der gewöhnliche Aufenthalt – habitual residence or the person’s main centre of life
das Erbrecht – inheritance law
die Verlassenschaft – the estate of a deceased person or the Austrian probate process
das Testament – will
die Rechtswahl – choice of law
das Europäische Nachlasszeugnis – European Certificate of Succession
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