If a father leaves a shared property to his children, they must decide what to do with it. During the period of the decision, they form a community of heirs, which is often characterized by great potential for disputes. In this article we look at ways in which communities of heirs can come to a harmonious agreement and what options inheritance law offers if a co-heir blocks decisions.
Who belongs to the community of heirs?
If there is no will or inheritance contract, the law regulates who is one of the heirs. Sections 1924 ff. BGB are relevant here. The inheritance is based on the family structure. The more closely the relative is related to the testator, the more likely an inheritance is. A distinction is made between the following categories.
- Heirs 1st order: children and adopted children; if deceased, grandchildren
- 2nd order heirs: parents; if deceased, siblings, nephews, nieces, great-nephews, great-nieces
- 3rd order heirs: grandparents; if deceased uncles, aunts, cousins, cousins
- 4th order heirs: great-grandparents
- 5th order heirs: great-great-grandparents
Spouses are generally entitled to a share of the inheritance. It is irrelevant whether there are other children or other relatives. How high the inheritance rate is depends on the specific family constellation.
Typical challenges within a community of heirs
One of the biggest challenges in inheritance disputes without a will is that every co-heir has a right to everything. Especially when it comes to real estate, this creates the need for decisions to be made together. There are various options here.
Proper administration
If the heirs decide on measures to preserve the property, only a majority of votes is required.
Extraordinary administration
If significant changes are to be made to the property or if it is even to be sold, a unanimous vote of the community of heirs is required.
Necessary administration
If measures are necessary to avert imminent damage to the property, this is also referred to as emergency management. Since these are urgent decisions, even an individual heir is entitled to take action without consultation.
The use of the jointly inherited property
When it comes to the question of how the property should be used in the future, the community of heirs has various options.
Renting the inherited house or apartment
The first option is to sublet the property and generate ongoing income. You can also allow a co-heir to use the property by paying rent. It should be noted that as a landlord, joint decisions will continue to have to be made in the future. You should only decide to rent it out if the members of the community of heirs have a good relationship with each other.
Establishment of home ownership
If several heirs want to live in the property, establishing residential or partial ownership is a viable option. This involves dividing the property into several residential units and allocating his or her share to each heir. The prerequisite for this is a declaration of division, which is certified by a notary. Once the deed is legally binding, each heir can do whatever he or she wants with his or her partial ownership.
However, this variant is often problematic in practice, as it would either not be technically feasible or would be extremely uneconomical to divide the property. A fair division is often impossible because every apartment or house has an individual layout.
Sale of the inherited property
The most frequently used variant is to sell the property, with the proceeds from the sale being divided according to the inheritance. It is not absolutely necessary that the buyer is an external third party. There is also the possibility that a co-heir buys the property and pays out the other heirs.
It is also not uncommon for the testator's spouse to live in the property. The community of heirs then decides whether he or she can stay there or has to move out. For example, it can be agreed that he or she pays regular rent to the community of heirs, or pays out the community of heirs in order to be able to continue to stay in the property.
One of the heirs doesn’t want to sell – what should I do?
The fact that plans for the property can only be implemented by mutual agreement often leads to problems. It is not uncommon for the co-heirs to be unable to come to an agreement. In this case, the following options exist:
Delamination
If no buyer can be found and the co-heirs do not want to buy the inheritance, a split can be another option for leaving the community of heirs. This means you waive your rights as a co-heir and negotiate a severance payment with your co-heirs. However, there is no right to this. Here you have to rely on the willingness of your co-heirs.
Sale of the inheritance
In the case of the previously mentioned payment by co-heirs, the other co-heirs pay the heir who refuses to sell the property. As soon as he or she has sold his or her own part, he or she is no longer part of the community of heirs.
If the owner of the inheritance has found a buyer, the notary will inform the co-heirs. They then have two months to use their right of first refusal.
Partition auction
If there is an inheritance dispute, the partition auction is usually the last resort. It can be applied for by any heir without the need for coordination with the co-heirs. Since the step involves high court and legal fees, it is not worth it in most cases. At auction, the proceeds are usually significantly less than the actual property value.
Conclusion
Disputes can quickly arise in a community of heirs. So who one? Inherit property If you want to, you should deal specifically with the topic. The testator should therefore determine at an early stage which successors will be taken into account in the will and in what form. If there are disagreements, the law provides a number of options for dividing the inheritance. Since these are often complex processes, it is advisable to seek professional help. BETTERHOMES, for example, supports the sale of an inheritance with many years of experience and an extensive network of brokers.
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