AUSTRIA Law and Practice Contributed by: Clemens Philipp Schindler and Katharina Schindler, Schindler Attorneys
the register. In addition, any person or organisation is granted access to the register if they can demonstrate a legitimate interest in doing so. 2. Succession 2.1 Cultural Considerations in Succession Planning The desire of the older generation to determine and control the future allocation of their wealth is a com - mon factor in succession planning. Several legal tools are used to safeguard a family’s wealth. Firstly, the transfer of assets inter vivos is often combined with requirements and conditions in favour of the older generation, such as provisions prohibiting transfer and disposal or the right to usufruct. Secondly, the installa - tion of executors of the last will and the establishment of private foundations are used to prolong control over family assets. 2.2 International Planning International estate planning has become increasingly important in the last couple of years. The key factor in addressing the relevant legal and tax provisions is to initiate a timely engagement regarding estate plan - ning. Legal provisions such as forced heirship or taxes may require estate planning transfers inter vivos or the establishment of foundations or well-structured wills to avoid negative effects for the next generation. Austria does not currently levy inheritance, gift or wealth tax, but foreign tax obligations often play a decisive role in estate planning in international cases. 2.3 Forced Heirship Laws Austrian inheritance law contains provisions on forced heirship ( Pflichtteilsrecht ). In principle, the descend - ants of the deceased and the spouse/registered part - ner are entitled to a compulsory share ( Pflichtteil ), which amounts to half of the statutory share. Other rel - atives of the deceased, such as parents (since 2017) or siblings, are not entitled to a compulsory share. The statutory share is calculated by dividing the estate by the number of children of the deceased – eg, in the case of two children, the statutory share is 50% of the estate for each child. The compulsory share would be
25% of the estate. If a child has passed away prior to the testator, they shall be substituted by their own children (ie, the testator’s grandchildren) regarding the respective compulsory share. If the deceased person is survived not only by their children but also by a spouse, the statutory share is one third for the surviving spouse and two thirds for the children of the deceased – eg, in the case of two children, the statutory share of each child would be one third of the estate, and the compulsory share of each child would be one sixth of the estate. In order to make a specific claim to the compulsory share, one must not: • have renounced the compulsory share ( Pflichtteils - verzicht ); • be unworthy of inheritance ( erbunwürdig ); or • be disinherited ( enterbt ). Renunciation of the inheritance ( Erbverzicht ) in gen - eral leads to the loss of the claim. The renunciation of inheritance may be concluded with effect for the renunciant or with extension of effect to the renunci - ant’s descendants. The reasons for disinheritance include certain criminal acts of the beneficiary against the deceased and their close relatives, or an offence against the last will of the deceased. The compulsory portion to which the descendants and the spouse or registered partner are entitled may be reduced by a last will. This presupposes that the deceased and the beneficiary of the compulsory por - tion never had a relationship that corresponds to a respective family relationship, or that such a close relationship did not exist for a longer period of time (eg, 20 years) until the death of the deceased. The compulsory portion may be fulfilled through the assignment of specific assets by the deceased (so it is not a straight cash claim) or through awarding the position of a beneficiary in a private foundation.
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