Community of heirs - liability of co-heirs towards third parties
If there are several heirs, they form a community of heirs. They not only share the positive assets of the deceased, but also have to take care of the liabilities of the estate. What rights the community of heirs has and how it is dissolved can be here can be read here.
How is the community of heirs liable for estate liabilities?
In principle, the co-heirs are jointly and severally liable in accordance with Section 2058 BGB.
Joint and several liability means that a creditor of an estate can choose which heir to claim against. The creditor does not have to take into account the co-heir's share of the estate. In practice, however, claims are most frequently made against the co-heir whom the creditor of the estate considers to be the most solvent.
If a co-heir against whom a claim is made has to pay for a liability, he or she is not completely on his or her own. Rather, he or she has a claim for compensation against the other co-heirs in accordance with Section 426 BGB.
However, co-heirs are not liable without limitation. Instead, there are limitations on liability that protect the personal assets of the co-heirs from claims by creditors of the estate. In this context, a creditor of the estate who wishes to assert claims against one or all co-heirs can be referred to the estate. This is done by the co-heir utilising the statutory right to refuse performance. The so-called defence of limited liability of heirs pursuant to Section 2059 BGB enables the co-heirs to refuse to settle estate liabilities from their personal assets until the estate is divided. Nevertheless, the liability extends to those individual items that the co-heir has already received in advance despite the continued existence of the undivided community of heirs. These can therefore not be excluded from liability.
The claim for compensation expires after three years in accordance with § 195 BGB.