AUSTRIA Law and Practice Contributed by: Clemens Philipp Schindler, Schindler Attorneys
ing inheritance may also be subject to a prenuptial or postnuptial agreement. Such agreements have to meet certain formal requirements. If nothing has been agreed between the spouses, the marital property and marital savings must be divided at divorce. However, companies (respectively, shares in such) are excluded from this principle by law, as long as they are not merely investments or in case of excessive profit retention. As of 1 January 2025, couples who married after 29 January 2019 and have cross-border elements can now choose via prenuptial agreement which country’s property regime applies, based on either nationality or habitual residence. 2.5 Transfer of Property The transfer of property on the basis of a gift is subject to special formal requirements (under certain condi - tions). To be able to enforce a donation that is not immediately effected, a notarial deed is required, in order to ensure the donor’s awareness of the con - sequence of their action. Such a notarial act natu - rally leads to additional costs. In connection with the transfer of real estate, the necessary registration fees in the land register are additional costs that must also be taken into account. If the transfer concerns real estate, the acquisition costs of the real estate are carried forward by the successor. Furthermore, RETT of up to 3.5% of the value of the real estate is triggered, as well as a reg - istration tax of 1.1% of the threefold tax assessment value ( dreifacher Einheitswert ). Certain donations must be reported to the tax author - ity. The notification requirement only applies to inter vivos gifts (eg, not gifts on death) and only to certain assets, including cash (see 1.2 Exemptions ). 2.6 Transfer of Assets: Vehicle and Planning Mechanisms There is no inheritance or gift tax in Austria, so there are no requirements for planning mechanisms for the tax-free transfer of assets to younger generations. However, there is a special notification obligation for gifts of cash, receivables, shares in corporations,
interests in partnerships, businesses, movable tangi - ble assets and intangibles. An intentional violation of the notification obligation may trigger fines of up to 10% of the fair market value of the gift. 2.7 Transfer of Assets: Digital Assets The “digital estate” includes all digital data and con - tent, such as internet profiles, social media, email accounts, telephone contacts, blogs, accounts with messenger services, photos and videos, stream - ing rights, cryptocurrencies, etc. There are no legal regulations or Austrian Supreme Court decisions that explicitly govern the digital estate per se, but it is the prevailing opinion that the digital estate passes to the heirs by means of universal succession. In its landmark decision in 2018, the German Supreme Court (BGH III ZR 183/17) explicitly stated that heirs should have access to online accounts and storage space. Based on this decision, a 2020 court decision in Austria stated that the digital estate is inheritable and that the heirs have the right to access the digital estate. However, the mere surrender of the access data does not yet entitle the heir to dispose of the digital estate; usage contracts of the service providers have to be observed. It is increasingly common to include information on digital accounts in last wills. 3. Trusts, Foundations and Similar Entities 3.1 Types of Trusts, Foundations or Similar Entities The Austrian legal system does not provide for trusts. However, it is possible to establish a private founda - tion ( Privatstiftung ) (inter vivos or mortis causa), which essentially serves the purposes established by the settlor in the foundation documents (charity, wealth preservation, support of family members, etc). The private foundation is a legal entity that enables the settlor (or several settlors) to regulate the inter - nal organisation and purpose of the foundation. Due
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