What rights do I have in a community of heirs?
Upon the death of the testator, the assets pass as a whole to the heir(s). If an estate is divided among several (co-)heirs, a community of heirs is automatically created by law. Even if the testator has stipulated that the co-heirs receive certain items, ownership of these items does not automatically pass to the respective favoured co-heir. Initially, each individual item in the estate is jointly owned by all heirs. The co-heirs must first settle and divide up the estate as part of the inheritance distribution.
Before the co-heirs divide the estate among themselves, they must settle the estate liabilities and may also have to sell estate assets in order to provide the estate with the liquidity required to settle the estate liabilities. In the event that the co-heirs divide the estate among themselves before settling the estate liabilities, they risk no longer being able to limit their liability if the estate is insufficient. They then have unlimited and joint and several liability.
Since all items of the estate are initially the joint property of the co-heirs, the co-heirs must agree on the distribution as part of the settlement and transfer the respective items of the estate to the individual co-heirs. This is usually done as part of a so-called division plan.
If the co-heirs cannot reach an agreement, each co-heir can theoretically sue the other co-heirs for approval of a specific division plan. However, the prerequisite for this is that the estate is ready for division, i.e. that there are no more estate liabilities and that all indivisible assets have already been realised. As the court would have to reject an action for approval of a division plan even in the event of the slightest deviation, such actions are very risky. In practice, such an action only makes sense if the estate only includes cash or easily distributable bank balances.
Instead of suing the co-heirs for approval of a specific division plan, the realisation of the individual items of the estate should be pursued first. Co-heirs may also oppose the realisation of individual items of the estate. In this case, the co-heir who wants to achieve the division of the community of heirs has no choice but to bring about the realisation by forced sale in accordance with the provisions on the sale of pledges and, in the case of real estate, by forced sale („partition sale“).
Can the division of the inheritance be excluded?
The settlement of the estate may be excluded by a corresponding order of the testator. The testator can exclude the settlement of the entire estate or individual items of the estate permanently or for a certain period of time. However, because the testator's order merely excludes the right of each co-heir to the settlement - i.e. no co-heir can pursue the settlement against the will of the other co-heirs - the co-heirs can carry out the immediate settlement contrary to the testator's order, provided they are in agreement. The testator cannot order an indefinite exclusion of settlement. The prohibition becomes ineffective no later than 30 years after the occurrence of the inheritance, unless the testator makes the cancellation dependent on the occurrence of certain events. The order has no effect vis-à-vis the heir's creditors - if the inheritance share has been seized on the basis of a finally enforceable title - and in the event of the co-heir's insolvency (Section 84 (2) InsO).
The forced sale or partition auction of an estate generally leads to the destruction of economic assets. Under certain circumstances, it is advisable for the co-heir who wishes to bring about the settlement to offer the essential items such as real estate on the market - even without the involvement of the other co-heirs - before the forced sale or partition auction is initiated. If a prospective buyer is actually found, the other co-heirs should be asked once again to agree to a free sale. If they still refuse to do so, it may be possible to claim compensation if the estate items are later sold or auctioned under the offers of the prospective buyer as part of the forced sale or partition auction.