unternehmensnachfolge-anwalt.at
Mag. Bernhard Brandauer, Rechtsanwalt
A family business is subject to substitution succession. Section 613 ABGB separates consent, ordinary management, substitute assets and the residue exception.
A prior heir taking over a family business cannot treat every operational act as blocked. Section 613 of the Austrian General Civil Code, or ABGB, gives the prior heir a limited form of ownership. Each disposal must be classified: it may fall within ordinary management, require the subsequent heir's consent or fit one of the statutory exceptions.
The provision concerns assets from the estate covered by the substitution succession. In a business case, the first step is to identify the asset and the person or entity that owns it. Operational management, company property and property bound by the succession may operate on different legal levels.
This article maps the disposal plan for a family business. The general coordination of a will and articles of association is covered by the article on succession alignment. Questions about minor heirs and required consents are addressed in a separate article.
The check separates ordinary management, an extraordinary disposal, a substitute asset and succession to the residue.
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Classify the transaction before requesting consent or relying on an exception.
Describe the transaction, asset, purpose and business practice. Record why it continues or economically adjusts the business. Calling a transaction ordinary does not replace the specific assessment.
Establish whether the subsequent heir must consent. Then assess whether the disposal fulfils an estate liability, prevents damage to the estate or falls within ordinary management. Record the reasoning before the agreement and completion.
Record the original asset, proceeds and subsequent acquisition separately. Section 613 subsection 3 ABGB provides that the substitute asset is presumed to become part of the estate. Accounting and contract documents should make the classification traceable.
Check whether the succession is genuinely to the residue. In that case, section 613 subsection 4 ABGB allows the prior heir to dispose of estate assets among living persons as an owner. The testamentary wording and the business assets must still be read together.
Section 613 ABGB refers to assets from the estate covered by the substitution succession. The first review is therefore one of classification. The estate inventory, will and transfer documents should show whether an individual asset, right, share or other item is bound.
In a family business, the economic unit may be wider than the individual asset bound by the succession. If the business is operated through a company, company property must also be distinguished from the deceased's personal asset. That classification determines which disposal falls under section 613.
The disposal plan should bring together assets, legal owners, contracting parties and the wording of the succession. A general statement that the entire business is automatically blocked or automatically free to dispose of is too broad.
Section 613 subsection 2 ABGB permits disposals within ordinary management without the subsequent heir's consent. The answer depends on the business, the asset and the transaction. Regular procurement, an ordinary sale of goods or a usual replacement may differ from abandoning a central location or selling a defining operating asset.
Purpose, scale, frequency and economic importance matter. A transaction that makes business sense still needs a traceable connection to ordinary management. Management should therefore record the transaction, its necessity and its comparability with the established business.
The ordinary-management assessment does not replace authority to represent the company or a consent required by a contract or the corporate structure. The succession limit and operational authority must be considered together.
Section 613 subsection 2 ABGB treats the subsequent heir's consent as the normal route for disposals of covered estate assets. Without consent, a disposal remains possible only in the statutory areas: to fulfil estate liabilities, to prevent damage to the estate or within ordinary management.
The exception should be described specifically before completion. Where damage is imminent, a general reference to urgency is not enough. Record the estate asset, the risk, the planned measure and why the measure is necessary to prevent damage.
Consent should identify its scope, asset and timing. A general family understanding should not be treated as consent to a specific disposal. The file should show which asset and transaction the declaration covers.
If the prior heir receives money or another asset through a disposal of a covered asset, section 613 subsection 3 ABGB provides that the substitute asset becomes part of the estate in case of doubt. The sale therefore does not automatically end the succession classification.
A business needs a traceable chain. It links the original asset, contract, proceeds, intermediate account and replacement acquisition. If funds are used partly for the business and partly privately, each amount requires separate classification and documentation.
Clear records protect the business's ability to operate and make the later transfer to the subsequent heir easier to assess. They do not replace the legal review of the disposal, but they show whether the economic substance was preserved, changed or consumed.
If the succession is to the residue, section 613 subsection 4 ABGB allows the prior heir to dispose of estate assets among living persons as an owner. This special rule must be separated from the general consent requirement and must follow from the testamentary arrangement.
The special rule does not answer every company-law question. The articles, authority to represent, consent reservations and legal ownership of the business remain separate issues. The testamentary arrangement cannot simply be equated with an office or shareholder position.
The review should therefore read at least three groups of documents together: the will and estate inventory, the articles and company-register documents, and the specific contract for the asset. Only that combination shows the available room for action.
Before completion, classify each material asset as ordinary management, a consent-based disposal, a statutory exception, a substitute asset or residue succession. The list should also record the legal owner, contracting party, value, planned date and required documents.
For consent-based transactions, plan the subsequent heir, declaration, scope and form. Routine transactions should not rely on blanket approvals. Management should record the business necessity and the connection to ordinary management in the transaction file.
This creates a workable transfer file. It shows which decisions the successor can take immediately, where consent is still missing and which assets must later remain traceable as substitute assets in the estate.
No. Section 613 subsection 2 ABGB permits disposals within ordinary management. Whether a particular purchase, sale or replacement qualifies depends on the business, asset and transaction.
Consent is generally required for disposals of covered estate assets. Without consent, the statutory areas include estate liabilities, preventing damage and ordinary management.
Money or another asset received through the disposal becomes a substitute asset and, in case of doubt, part of the estate under section 613 subsection 3 ABGB. Proceeds and the replacement should be documented separately.
Where the succession is to the residue, section 613 subsection 4 ABGB allows the prior heir to dispose of estate assets among living persons as an owner. The testamentary wording must establish that special rule.
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