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LEXIKON
Effects of estate insolvency on probate proceedings
In its decision of October 23, 2025, 2 Ob 106/25i, (www.ris.bka.gv.at/jus), the Austrian Supreme Court answered key questions regarding the continuation of probate proceedings in the event of insolvency proceedings being opened against the estate’s assets. The decision deals with questions that frequently arise in practice at the interface between probate and insolvency proceedings.
Facts of the case
In the case in question, probate proceedings had been opened in respect of the estate of a testator who died in 2023. Various motions were already pending in these probate proceedings, in particular to clarify legal and factual inheritance relationships. As the estate was overindebted under insolvency law, insolvency proceedings had to be opened against the estate’s assets at the request of the estate administrator. The opening of insolvency proceedings led to the not uncommon situation in which probate proceedings and insolvency proceedings (concerning the assets of the over-indebted estate) were pending at the same time.
There was disagreement between the parties, among other things, on the question of the extent to which the insolvency proceedings affected the continuation of the probate proceedings. In addition to the procedural question of interruption, the substantive scope of the powers of the estate and the jurisdiction of the courts were also at issue.
Legal issue
The Supreme Court had to clarify whether and to what extent the opening of insolvency proceedings leads to an interruption or even a suspension of the ongoing probate proceedings, and which parts of the probate proceedings will continue. The Supreme Court has now provided clarity on these issues, which have also been extensively discussed in legal doctrine.
No (complete) interruption of the probate proceedings
The Supreme Court concluded that the opening of insolvency proceedings does not lead to a complete interruption of the probate proceedings. Only those parts that are clearly “related to the estate” are interrupted within the meaning of Section 8a IO. According to the Supreme Court, such “relating to the estate” exists where the powers or responsibilities of the insolvency court or the insolvency administrator are affected. Accordingly, matters and issues concerning the assets and liabilities of the estate are interrupted by the insolvency proceedings. Property law issues thus fall within the exclusive jurisdiction of the insolvency administrator. However, matters that concern the debtor personally are expressly not affected.
It follows that procedural acts relating exclusively to aspects of the estate that are not related to the estate as a whole – such as the determination of heirs or the examination of third-party rights to the estate – must continue to be carried out in probate proceedings. However, the insolvency court and the insolvency administrator have exclusive jurisdiction over measures that directly affect the insolvency estate (such as the realization of certain assets or the settlement of estate-related claims).
Legal assessment
Several conclusions can be drawn from the decision: On the one hand, the Supreme Court reinforces the continuation of probate proceedings instead of interrupting them entirely due to insolvency. This is in line with the principle of effective procedural handling and the avoidance of questionable jurisdictions.
The distinction between parts of the proceedings relating to the estate and those not relating to the estate ultimately creates a clear legal line between insolvency law and inheritance law. Ultimately, the decision also takes into account the fact that insolvency proceedings are designed as special proceedings with a strong interest in protecting the estate and creditors. A complete continuation of the probate proceedings without regard to the estate would run counter to this guiding principle. At the same time, however, the decision protects the rights of those affected whose estate matters do not fall within the estate from groundless discontinuation and delay of proceedings.
