Court Commission Fees: In Austria, Which Heir Pays?

Aug 29, 2025 Benn-Ibler Rechtsanwälte

In the case at hand, the defendant—being the sole heir—requested that the court fees, commission fees, and expert witness expenses be allocated proportionally to his sister’s claim.

The court of first instance denied the request for expert fees, determining that these costs should be covered by the estate. It approved reimbursement of court fees under Section 24(2) of the Austrian Court Fees Act (Gerichtsgebührengesetz, hereinafter GGG) and extended this application to court commission fees by analogy. The court of appeal affirmed this ruling.

In her appeal, the plaintiff contended that the defendant’s arguments were based solely on Section 896 of the Austrian Civil Code (Allgemeines bürgerliches Gesetzbuch, ABGB), rather than on Section 24(2) of the GGG. Nevertheless, the Austrian Supreme Court (Oberster Gerichtshof, hereinafter OGH) is not restricted by the parties’ legal characterisation of the claim; instead, it is required to assess the facts of the case from all applicable legal perspectives.

The plaintiff stated that court and court commission fees are costs associated with probate proceedings and should be claimed within those proceedings. As a result, the plaintiff maintained that claiming these costs in civil proceedings is not permitted. The OGH stated that, aside from inheritance law, probate does not cover cost reimbursement; legatees must pursue claims in civil court. The right to claim reimbursement of court fees paid by the heir under Section 24(2) of the GGG is considered a substantive right of recourse rather than a procedural cost reimbursement claim.

Regarding court commission fees, the plaintiff contends that under Section 4 of the Austrian Court Commission Tariff Act (Gerichtskommissionstarifgesetz, GKTG), the legatee is not required to pay the court commissioner. Nevertheless, this provision pertains solely to the obligation to pay the court commissioner and does not prevent the heir from seeking a proportionate reimbursement of costs.

Section 24(2) GGG addresses court fees and was intended by lawmakers to share costs among all parties who benefit from the estate, not just the heirs. Because court commission fees are similarly calculated based on the estate’s value, the OGH has determined that it is appropriate to apply Section 24(2) GGG by analogy. This allows heirs to claim proportional compensation from legatees in comparable situations.

OGH 2 Ob 67/25d (03.06.2025)