OGH on probate proceedings and the registration of claims in the inheritance by creditors

Nov 6, 2020 Benn-Ibler Rechtsanwälte

The provisions of Sec. 143 et seq. of the Non-Contentious Proceedings Act (Außerstreitgesetz, AußStrG) govern the probate proceedings. Followed by preliminary proceedings, a death certificate is issued. At this time the widower applied for the authorization to take over the estate in accordance with Sec. 153 (2) AußStrG. The handling of the estate itself (Sec. 156 et seq. AußStrG) can be omitted in certain cases pursuant to Sec. 153 (2), AußStrG. The creditor (social welfare institution) registered existing claims against the estate.

The previous instances had already decided that it was not possible to take into account claims for nursing care costs due to lack of income after the death of the deceased under Sec. 330a of the General Social Security Act (Allgemeines Sozialversicherungsgesetz, ASVG), since access to the assets of persons admitted to inpatient nursing care facilities, their relatives, heirs [...] is not permitted within the framework of social assistance to cover the costs of nursing care. However, the claim of the lower court that the question of what is meant by income as defined in Sec. 330a ASVG is a significant one and that there is no Supreme Court case law on this matter was invalidated by the Supreme Court (Oberster Gerichtshof, OGH), as it had already ruled on this issue. Furthermore, this legal question did not arise, as the consideration of the claim could not be considered due to the lack of a conclusive claim registration and certification of the alleged claim.

The creditor is entitled to file an application and appeal in the procedure for granting an authorization pursuant to Sec. 153 (2) AußStrG: This provision now constitutes an acquisition title, according to which debt repayment can take place. In addition, Sec. 153 AußStrG aims at a procedurally economical settlement of a minor estate. In the case of a minor, not over-indebted estate, the announcement of a monetary claim in the probate proceedings is to be understood as an application for the granting of authorization to take over cash or bank deposits pursuant to Sec. 153 (2) AußStrG.

OGH 2 Ob 83/19y (29 June 2020)