Dissolving a Community of Heirs:
Ways out of the forced community.

If the deceased leaves several heirs, they form a community of heirs by operation of law (§ 2032 BGB). The estate belongs to all of them jointly, as joint owners: no co-heir holds "his third of the house", but only a share in the estate as a whole. The consequence: the heirs may dispose of individual estate assets – the account, the property, the securities portfolio – only jointly. A single co-heir alone can block a sale. This is why the community of heirs is not intended as a permanent arrangement but as a community for winding up the estate – each co-heir may demand the partition at any time (§ 2042 BGB).

Until the estate is settled, the heirs administer the estate jointly (§ 2038 BGB). Measures of proper administration – such as continuing a tenancy agreement, necessary repairs, or the termination of contracts – are decided by the majority according to inheritance shares. Extraordinary measures and dispositions of estate assets require unanimity. Only necessary preservation measures (e.g. a burst pipe) may be arranged by any co-heir alone. Ongoing costs such as property tax and insurance are borne by the community; for liabilities of the estate, the co-heirs are liable as joint and several debtors (§ 2058 BGB).

• 1. Deed of division: The optimal route. The heirs agree on who receives what and who pays out whom. If the estate includes a property, the agreement must be notarised – as both a notarial practice and a specialist legal firm, we accompany both steps under one roof.
• 2. Sale of the inheritance share: Each co-heir may sell their entire share without the consent of the others – even to third parties. The contract requires notarial certification (§ 2371 BGB); the remaining co-heirs are entitled to a right of first refusal of two months (§ 2034 BGB).
• 3. Withdrawal by settlement: A co-heir withdraws from the community of heirs in exchange for a settlement payment; their share accrues to the remaining heirs. This can be done without any particular form and is often the quickest solution – nevertheless, the settlement should be recorded in writing to ensure evidential certainty.
• 4. Partition auction: For properties, the last resort: Any co-heir may apply for this at the local court (§ 180 ZVG), even against the wishes of the others. However, caution is advised – the proceeds are often below market value, the process often takes longer than a year, and anyone can bid, including a co-heir who is in dispute with the others. A joint private sale is almost always the better option economically. Our guide “Inherited Property”.
• 5. Action for partition of the estate: A last resort when nothing else helps: an action seeking consent to a partition plan. This requires the readiness for partition of the entire estate – the procedure is correspondingly complex and should be well prepared.

The most common case in practice: everyone wants to settle the estate – except one. There is no direct claim to simply be paid out; no one can be forced to transfer a particular amount. However, there are three levers that can break the deadlock:

• Applying for a partition auction (Teilungsversteigerung): Any co-heir may initiate this alone (§ 180 ZVG). The mere application noticeably changes the negotiating position, because the blocking co-heir must then also expect proceeds below market value.
• Selling your share of the estate: You may dispose of your entire share of the estate alone (§ 2033 para. 1 BGB) – by notarial deed. The remaining co-heirs have a right of pre-emption for two months (§ 2034 BGB). Often they then decide to buy it themselves.
• Suing for consent: The action for division of the estate (Erbauseinandersetzungsklage) aims at obtaining consent to a specific division plan. It requires that the estate is ready for division – i.e. that all estate liabilities have been settled.

Which lever is the right one depends heavily on what the estate consists of and how great the time pressure is. In many cases, it is sufficient to inform the blocking co-heir in writing about these options – an agreement is then often reached without formal proceedings.

If a property is part of the estate, matters become more formal. A division agreement obliging a co-heir to transfer land must be notarised (§ 311b para. 1 BGB); the conveyance itself must in any case be declared before a notary. In practice, this means: the flat taken over by one of the siblings and the equalisation payment to the others belong in one deed – together with the arrangement as to who takes over land charges, arrears and ongoing costs.

From a tax perspective, this is more favourable than many assume: if a co-heir acquires a property from the estate as part of the division of the estate, no real property transfer tax is payable (§ 3 No. 3 GrEStG). However, anyone who only passes the property on among themselves after the division has been completed loses this benefit – one of the most common and costly oversights in practice.

Notary fees are regulated uniformly throughout Germany under the Court and Notary Fees Act (Gerichts- und Notarkostengesetz) and are based on the value of the matter, not on effort or negotiating skill – they are identical at every notary in Germany. For the division agreement, the value is based on the value of the distributed estate; for the sale of an inheritance share, on the purchase price.

The partition auction also incurs court costs and expert costs for the market value appraisal; in addition, there is the economic loss if the winning bid remains below market value. As a rule of thumb, therefore: the amicable solution is almost always the cheaper option, even if it costs a concession in the equalisation payment.

Partially, yes. If the estate consists only of money, accounts and movable property, the co-heirs can reach an informal agreement – though it should still be recorded in writing, if only for the banks. You must involve a notary in two cases: when a property is transferred, and when an inheritance share is sold or transferred. The withdrawal of a co-heir in exchange for compensation, known as Abschichtung, is also generally possible without formal requirements according to the case law of the Federal Court of Justice (Bundesgerichtshof) – whether this is the right approach in a specific case should, however, be examined, as it leads to accretion among the remaining co-heirs.

Most communities of heirs do not fail because of the law, but because of emotion and lack of transparency. It has proven effective to gain an early, complete overview of the estate (if necessary via the right to information and the inventory of the estate) to have properties valued by a neutral expert, to agree deadlines and interim goals in writing – and, in the event of entrenched positions, to seek an agreement moderated by a lawyer try before the partition auction destroys value. If a co-heir who is also entitled to a compulsory portion has been overlooked, our Compulsory Portion Guide can help.

Anyone who drafts their will can avoid later disputes: through a sole heir with legacies in favour of the others, through clear partition instructions, or through Execution of wills, in which a neutral party carries out the division. How a robust will is created is explained in our Will Guide – as a notary, we notarise the appropriate solution.