Austrian OGH: Only Estate-Related Parts of Probate Halted by Insolvency

Jan 22, 2026 Benn-Ibler Rechtsanwälte

In the case at hand, upon the passing of the testator in 2023, probate proceedings commenced. The son and daughter contested the appointment of an estate administrator, challenged the approval of the insolvency application, and objected to the denial of their request for the administrator’s removal. Subsequent to these appeals, bankruptcy proceedings were formally initiated against the assets of the estate. Consequently, the Austrian Supreme Court (Oberster Gerichtshof, hereinafter OGH) was required to determine whether the commencement of bankruptcy proceedings resulted in the suspension of the entire probate process or solely those aspects pertaining to the estate.

The OGH held that the initiation of insolvency proceedings concerning an estate does not suspend the entire probate process, but only those aspects related to the estate itself. This applies especially when the authority of the insolvency court or the insolvency administrator is implicated.

During probate, the lower courts had appointed an estate administrator, approved insolvency, and denied the son’s request to remove the administrator. Both children appealed to the OGH. After submission, the Vienna Commercial Court opened bankruptcy proceedings on the estate’s assets at a creditor’s request.

The OGH first examined the effects of opening bankruptcy proceedings on probate proceedings because deciding on the appeals would not have been possible if opening insolvency proceedings had interrupted the entire process. The Court emphasised that, although insolvency proceedings against an estate also interrupt probate proceedings ex lege, the scope of the interruption — a controversial issue in legal literature and case law — must be based on the purpose of the interruption under insolvency law. This purpose is, on the one hand, to ensure equal treatment and an efficient insolvency registration and examination procedure, and, on the other hand, to protect the estate from legal disadvantages.

Accordingly, halting does not extend to aspects of proceedings that pertain solely to the debtor’s interests. This includes the representation of the estate before the bankruptcy court and insolvency administrator, as well as ancillary matters such as the issuance of a certificate of inheritance pursuant to Section 810 of the Austrian Civil Code (Allgemeines bürgerliches Gesetzbuch, ABGB), or inheritance law proceedings unrelated to insolvency. In contrast, the interruption does apply to proceedings concerning the estate itself, for example, those relating to the determination of the estate, and to actions that affect the jurisdiction of the insolvency court, such as transfers of ownership during ongoing insolvency proceedings.

Since the probate court’s approval of insolvency applications and decisions on estate administrators pertain only to estate representation as the debtor—and do not affect the existence of the insolvency estate—probate proceedings were not interrupted.

OGH 2 Ob 106/25i; 2 Ob 123/25i; 2 Ob 124/25m (23 October 2025)