Dispute between the community of heirs

If a person dies, usually not just one person inherits. Often several people inherit – whether due to legal succession, a will or an inheritance contract. These people then form a community of heirs.

It is possible to allow a community of heirs to exist permanently. In most cases, however, it makes sense to bring the matter to the community of heirs. Only after the dispute are the heirs able to act independently of other heirs with their share of the inheritance.

Community of heirs

A community of heirs/co-heirs arises when several people become legal or testamentary heirs of a testator.

When the testator dies, all heirs move into their exact legal position. This means: if the testator was the owner of a property, all heirs are joint owners of the property after the inheritance. The same applies to all other legal positions: for accounts, objects, securities, contracts, rights, claims, etc.

The community of heirs creates a community that heirs often perceive as a forced community. It is not uncommon for different generations, interests and financial opportunities to come together here, with a correspondingly high potential for conflict. Especially in conflict-ridden communities of heirs, the goal is usually to quickly resolve the issue between the community of heirs.

Examples of a community of heirs:

1. The couple M & F live in the statutory property regime of the accrued community and have two children, S and T. After the death of M, F with a ½ share and S and T with a ¼ share each form a community of heirs in accordance with the legal succession.
2. The childless widower W draws up a will and, after his death, names his best friend X and his godson Y as his heirs in equal shares. After death, X and Y form a community of heirs with ½ share each.

Special features of the community of heirs

The assets from a testator’s estate are entitled to “entire ownership” by the heirs after his or her death. This means that these are so-called joint assets.

The most important consequence of this bond is that the heirs can only dispose of the estate and parts of it jointly and not alone.

In administrative matters, i.e. when it comes to the preservation, increase, security or use of the estate, the majority of the shares generally decide. Only in an emergency can an heir make decisions without the consent of the other members of the community of heirs. However, if it involves an exceptional measure in relation to the community of heirs (e.g. sale of the only property), the decision must be made unanimously. In particular, the unanimity requirement for exceptional measures can then become problematic, as even a small share of the inheritance and therefore a share of the vote can block important (economic) decisions.

Dispute between the community of heirs

In principle, every heir of a community of heirs can request the settlement of the community of heirs (division of the estate) at any time. The prerequisite for this is usually the so-called “readiness for division” of the estate. All heirs must participate in making the division ready.

In principle, the estate is only ready for division when

• whose existence has been comprehensively clarified
• all estate liabilities have been paid and
• the heirs have agreed on a division plan that distributes the entire estate in compliance with the legal division regulations. The testator’s division and legacy orders must also be taken into account.

What is particularly important here is that the division of the estate generally only takes place at the very end – especially after all (!) estate liabilities have been paid! – may take place. If this is not taken into account, the heirs run the risk that liability for estate liabilities is no longer limited to the estate. The result would be personal and unlimited liability for all heirs.

Taxes in the dispute between the community of heirs

Tax aspects must always be taken into account when distributing the inheritance. It is particularly important to know here that the tax office assumes a gift between the parties involved if an heir receives more as part of the inheritance dispute than he is entitled to in the will or according to legal succession. This can unknowingly trigger a significant tax burden (especially between siblings).

Dispute: real estate in the estate

Real estate in an estate is a regular starting point for inheritance disputes between heirs. In order to resolve the dispute between the community of heirs, a regulation for the real estate must therefore be found. For example, it is possible for an heir to take over a property in return for appropriate compensation payments. Alternatively, a free sale to a third party and distribution of the sales proceeds is a frequently practiced option.

If there are discrepancies about the value of the property during a sale or takeover, it usually makes sense to bring in a publicly appointed and sworn real estate appraiser. If an agreement is still not possible between the heirs, the so-called partition auction is the last option to remove a property from the community of heirs.

f