Community of heirs

What rights do I have in a community of heirs?

On the death of the testator, the assets are transferred in their entirety to the heir(s). If an estate is divided among several (co-)heirs, a community of heirs automatically arises by law. Even if the testator has ordered that the co-heirs receive certain items, the ownership of these items does not automatically pass to the respective beneficiary co-heir. Initially, each individual item of the estate is jointly owned by all heirs. The co-heirs must first settle and divide the estate in the course of the distribution of the estate.

Before the co-heirs divide the estate among themselves, they must settle the estate liabilities and, under certain circumstances, sell the estate objects in order to provide the estate with the liquidity necessary to settle the estate liabilities. In the event that the co-heirs divide the estate among themselves before the settlement of the estate liabilities, they risk no longer being able to bring about a limitation of liability in the event of an insufficient estate. They are then liable without limitation and jointly and severally.

Since all the objects of the estate are initially the joint property of the co-heirs, the co-heirs must agree on the distribution in the course of the dispute and transfer the respective estate objects to the individual co-heirs. This usually takes place within the framework of a so-called partition plan.

If the co-heirs cannot agree, each co-heir can theoretically sue the other co-heirs for consent to a certain partition 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 objects have already been realized. Since the court would have to reject a claim for consent to a partition plan even in the case of the slightest deviation, such actions are very risky. In practice, such a lawsuit only makes sense if the estate only includes cash or easily distributable bank deposits.

Instead of suing the co-heirs for consent to a certain partition plan, the realization of the individual estate objects should be promoted first. If necessary, co-heirs may also block the sale of individual assets. In this case, the co-heirs who wish to bring about the settlement of the community of heirs have no other option than to bring about the realisation of the estate by means of a forced sale in accordance with the provisions on the sale of pledged property and, in the case of real estate, by means of a forced sale by auction ("division auction").

Can the division of the inheritance be excluded?

The division of the estate can be excluded by an appropriate order of the testator. The testator can exclude the distribution of the entire estate or individual estate objects permanently or for a certain period of time. However, since the testator's order only excludes the right of each co-heir to dispute - i.e. no co-heir can pursue the dispute against the will of the other co-heirs - the co-heirs can pursue the immediate dispute against the testator's order, provided they are in agreement. The testator cannot order an indefinite exclusion of the dispute. The prohibition becomes ineffective at the latest 30 years after the occurrence of the inheritance, provided the testator does not make the termination dependent on the occurrence of certain events. The order is ineffective vis-à-vis creditors of the heir - if the portion of the inheritance has been seized on the basis of a finally enforceable title - and in the event of insolvency of the co-heir (section 84 (2) InsO).

The forced sale or the division auction of an estate usually leads to the destruction of economic values. Under certain circumstances, it may be advisable for the co-heir who wants to bring about the settlement to offer the essential objects such as real estate on the market - even without the participation of the other co-heirs - before the forced sale or the divisional 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 these are still blocked, it is possible to claim damages if the estate objects are later sold or auctioned off under the offers of the prospective buyer in the course of the forced sale or the division auction.