What does a Notary do?
A civil law notary is holder of a public office to whom state authority is conferred in order to draw up public deeds. The notary hereby ensures authenticity, probative force, and enforceability of such documents. He is obliged by law to be impartial and objective and enjoys public faith. Notarial deeds have a special evidential value before courts and authorities and can be just as enforceable as final court rulings.
In addition, the notary offers a comprehensive range of legal services, not only taking into account the possibilities of civil law structuring, but also the fiscal side of the processes.
The notary must draw up notarial deeds in agreement with the parties involved. The impartial and neutral advice of our clients always takes centre stage. The notary informs the parties about possible content arrangements and their different legal consequences, working towards a balanced solution and in particular aiming to protect the economically weaker or less experienced contracting party.
There is an obligation to act for the notary. This means that a notary may not refuse an official act. Exceptions are only given if he himself or his relatives are involved in the matter – and of course in prohibited transactions or fake or circumvention transactions. The notary may also not become active if there is unlawful discrimination against a third party or if a party is obviously not legally competent.
The notary is subject to special control and strict disciplinary rules.
While being a holder of a public office, a notary is still independent from the state and exercises his profession in his own name and on his own account. He is not subject to government orders.
A notary is – like a judge – obliged to be impartial. He does not unilaterally represent the interests of a client, but must work towards balanced legal and contractual relationships in order to avoid conflicts in advance and to create secure legal relationships.
The notary is entrusted with special tasks in the administration of justice. What the notary confirms in his public deeds has special probative value.
The notary and his employees are bound to secrecy towards everyone. This duty of confidentiality applies in principle to all matters that become known in the course of the exercise of a notary’s profession. Information may only be passed on to third parties with the express consent of all parties involved.
It a notary accepts money, deeds or documents as escrow agent (trustee), he is subject to special guidelines and furthermore offers insurance protection within the framework of the mandatory professional liability insurance. The professional practice of the notary is controlled by the Chamber of Notaries within the framework of its statutory duty of supervision.
The notary does not stand for or against a party, but always for the law. He helps those involved to obtain their rights, prevents disputes, and mediates in cases where compromises are deemed more successful than court rulings. For this reason, the notary is entrusted with sovereign tasks which are otherwise reserved, for example, for the courts. What is done by a notary is done well. Much of a notary’s work is therefore never really visible – and that is a good thing. After all, it is and remains their noblest task to exonerate the courts – not to employ them.
The drawing up of public deeds is the core task of the notary. Public deeds can be:
- Notarial deeds
Notarial deeds serve to record legal declarations and legal transactions.
- Certification of legal facts
This includes legalisation – i.e. the confirmation of the authenticity of a signature; certification – i.e. the confirmation that a copy corresponds to the original; life testimony – i.e. the confirmation that a person is alive, etc.
- Notarial minutes/protocols
These are, for example, the minutes of shareholders’ meetings. In a notarial protocol the notary certifies the legally relevant facts which were perceived by him.
Public deeds are considered to be the most reliable evidence of the “authenticity” and “accuracy” of a document.
For good reason, it is a legal requirement that the notary must be involved in a number of transactions:
Endowment contracts without actual transfer, inheritance and compulsory portion waiver contracts, certain contracts between spouses, contracts regulating in advance the distribution of matrimonial savings and residence between spouses in the event of divorce, contracts between registered partners regulating in advance the distribution of savings and residence in the event of dissolution of the partnership.
Most important are the Articles of Association and statutes of companies, share transfer agreements of shares in limited liability companies and agreements in connection with the reorganization of corporations.
In addition, there are several other cases in which a notarial protocol is mandatory: for example, in resolutions to amend Articles of Association; in the formation of stock corporations and their general meetings.
Examples from more recent times, for which the legislator has declared a notarial deed mandatory: The declaration of foundation for the establishment of a private foundation, and the declaration of consent to medically assisted reproduction (artificial insemination).
With almost every deed that is the basis for an entry in the land register, the signatures of the contracting parties must be authenticated – judicially or notarially. Signatures must also be certified for numerous applications to the Companies Register. The identity verification provided with each certification forms the basis for the quality and security of the land register and commercial register.
Notarial deeds can be designed in such a way that they can form the basis of a legal enforcement as an execution instrument: as an enforceable notarial deed. This means that it can be ensured even when a legal relationship is first established that there will be no difficulties in enforcing the law at a later date. An Austrian notarial deed can also be executed abroad.
On Behalf of the Court
One of the most important tasks of the notary is to act as the representative of the court (as a court commissioner). As such, the notary fulfils jurisdictional tasks and exercises sovereign authority. The most frequent and most important task of a “court commissioner” is to conduct probate proceedings.
The notary, as a court commissioner, not only carries out all important procedural steps such as the recording of death, the receipt of declarations of acceptance of the inheritance, the listing of assets or participation in and advice on inheritance agreements. He also prepares drafts of all court decisions.
As a court commissioner, the notary is obliged to consult with all parties involved (in particular heirs, beneficiaries of the compulsory portion and legatee). He must inform them objectively and comprehensively of their respective rights and obligations and he is also obliged to protect their rights in probate proceedings. He obtains all necessary information, in particular from banks, insurance companies, hospitals, and from the land and company register.
The comprehensive duty of instruction towards all parties, which the notary acting as Court Commissioner has to fulfil, often goes beyond inheritance law. The notary does not only take care of the of the probate proceedings. On behalf of the court or the heirs, he also carries out the probate result in the Land Register. At the request of the heirs, the notary also carries out a calculation of the real estate transfer tax in order to facilitate rapid entry in the land register.
It is hardly known that notaries handle about 20% of all inheritances free of charge. The law requires the procedure even if there is no estate.
Land register and companies’ register
The land register enables anyone to electronically inspect the current ownership structure and encumbrances of buildings or land. The company register provides information about the legal relationships of companies and contributes to creating legal certainty in business life.
The land register and the commercial register are maintained in the form of electronic databases. As a court commissioner, the notary prepares official certified extracts from the land register or commercial register, confirming the authenticity of the extract and its contents.
On behalf of the citizens
The notaries are experienced consultants and prudent companions in the drafting and execution of contracts in all fields of law.
Notaries also draft private documents. This is the case when neither a notarial deed nor a notarial protocol is required for legal declarations and legal transactions. In this field, the notary is in competition with other legal advisory professions.
The strict regulations of the Austrian Notaries Act also apply when drawing up private deeds. For example, the notary is obliged to instruct all parties and must ensure a fair balance of interests between the parties to a contract.
Purchase, endowment, or handover
The notary draws up purchase contracts for real estate (in which he also regularly acts as an escrow agent/trustee), donation and handover contracts, residential property contracts, contracts for the division of land, deeds granting or deleting land register rights, and much more.
The advice of the notary as a neutral contract drafter is of great advantage, especially with purchase contracts, in order to avoid the disadvantage of the weaker contractual partner.
Land register entries
The activity of the notary in real estate transactions is not limited to the drafting and certification of deeds. It also includes applications to the land register. The notary obtains all permits required for the execution of contracts, e.g. from the land transfer authority, from the court of appeal or the guardianship court.
Shareholders’ Agreements, Articles of Association
One of the most important tasks of the notary is to advise on the establishment of companies and partnerships. When setting up and founding a company, the notary does not only draw up the basic contract. He also takes care of reporting to the tax office, arranges for payment of taxes and fees and applies to the competent court for entry in the commercial register.
Companies’ Register entries
In case of changes in existing companies, the notary drafts all the necessary applications and takes care of all the steps up to the change in the company register. Thanks to direct access to the electronic company register and land register, the notary is always up to date on all important legal data of the companies and properties registered there.
Marriage and Partnership
In the field of family law, classic marriage contracts are no longer in high demand in today’s notarial practice. Instead, marriage agreements are concluded today which maintain the legal status of the separation of property as far as possible in the event of divorce. In addition to marriage, there are now more and more partnerships. These are not regulated by law and can in fact be dissolved at any time. This is why the need for fair contractual arrangements is particularly high here, for example with regard to provision, housing rights, asset sharing and inheritance law. The notary helps to draw up a contract which protects the economic and legal interests of both partners.
An adoption is executed by a written contract between the adopter and the adopted child. The adopted child is thus legally equal to the natural child. The validity of an adoption requires court approval, so the notary takes care of all the necessary steps – from drawing up the adoption contract to obtaining court approval.
The notary advises both spouses as an objective advisor, helps to reach an agreement and summarises this in a settlement which is submitted to the divorce judge.
Primarily due to his experience as a court commissioner, the notary is a specialist in matters of inheritance law. This includes the drafting of wills and other testamentary dispositions, their safekeeping and registration in the Austrian Central Register of Wills as well as the drafting of contracts of inheritance and compulsory portions. The drafting of a will does not only require a certain form, but it must also be ensured that the orders are unambiguous and actually achieve what the author of the will has intended. The involvement of a notary in the drafting of a will can only be recommended to anyone. This is all the more true as the costs are low and often insignificant in relation to the assets to be inherited.
Even when the notary is not acting as a court commissioner, he can still represent the heirs at the request of the parties. The notary can also be authorised by all heirs to carry out the proceedings in writing
as the heir’s authorised representative
Health Care Proxy
A health care proxy serves to provide for the case in which the procurement of certain affairs is no longer possible due to lacking business, judgement ,or statement capacity. It is granted as long as the principal is still able to act and contract. The health care proxy designates and authorises a trusted third party to take care of the transferred matters. The notary helps to draft such a proxy and establishes it in the required form.
As escrow agent / trustee
As trustee, the notary receives assets (money, monetary assets) or deeds in escrow from the trustor on the basis of an escrow agreement. He undertakes to bring about the legal consequences set out in the agreement and to fulfil the respective conditions.
The Notartreuhandbank (NTB) is our own special bank for the handling of escrow funds. Raiffeisen Zentralbank Österreich AG and UniCredit Bank Austria AG are jointly and severally liable for any loss incurred by the Notartreuhandbank, provided that the statutory deposit guarantee does not apply anyway.