Real estate inheritance: What you should know as a co-heir in a community of heirs

Statistics show that around every second estate contains at least one property. If several people are involved in the inheritance, they automatically form what is known as a community of heirs by law. If the testator has not provided for the utilization of the property in the will, all co-heirs dispose of the property until the community is dissolved and must manage it jointly.

As the co-heirs are united by law as a community of heirs and a property cannot be divided up without further ado, complex conflict situations often arise among the people involved. Questions such as "Does one of the heirs move into the house and pay off the others?" or "Should the property be rented out or sold?" lead to differences of opinion and emotional discussions.

In the following article, we provide you with the most important information on the subject of joint heirs and real estate.

Community of heirs and real estate: legal basis

If the testator has not made a will that regulates the whereabouts of the property after their death, the statutory succession comes into force. In this case, the heirs form a community of heirs in which the assets and therefore the property in question are jointly owned by all participants.

The heirs are entered in the land register as new owners "in community of heirs", which means that the management of the property and decisions in this regard must be made by mutual agreement. If, for example, a co-heir is to take care of the heating or public safety obligations, this can be determined by a simple majority decision of the co-heirs. However, a unanimous decision is always required as soon as the activities go beyond proper administration.

In the case of a community of heirs, the basic aim is to dissolve the community - the so-called settlement. You can find out more about this in a later section. Until then, a co-heir can only dispose of their own share in the community of heirs and sell it, for example.

Tip

As a community of heirs, let us advise you on how you can harmonize the different interests of all co-heirs.

Own use of the property by a co-heir

In practice, it often happens that a member of the community of heirs wants to use the property from the estate for their own purposes. The fact is, however, that the property is considered a special asset of the community of heirs and each co-heir only acquires a share of it. The law stipulates how the estate is managed and how the property can be used. In concrete terms, this means No co-heir has the sole right to the house or apartment and requires the consent of all other co-heirs, without exception, to use it for their own purposes.

If the deceased leaves a rented property, the community of heirs enters into the existing rental agreement. If a co-heir now wishes to move into the property themselves, this requires the consent of all other persons in the community of heirs, as already mentioned. If they accept the request, the existing tenancy agreement can be terminated for personal use - subject to the notice period, of course. However, if not all co-heirs agree to the request, the contract will continue with the current tenant without any changes.

If a co-heir is already living in the property when the community of heirs is formed, the community of heirs decides whether and under what conditions the co-heir can live in the house in future. In this case, it is possible for the co-heir using the property to pay compensation for use or a regular rent.

Sale, division and acquisition of shares in real estate in a community of heirs

As already described, the community of heirs must unanimously decide how the estate of houses, apartments or land should be disposed of. The main alternatives are as follows:

Sale of the property

Division of property between co-heirs

Transfer of ownership shares to other co-heirs

1. sale of the property

If the property is to be sold from the estate, this is only possible if all co-heirs agree to this - because each co-heir is listed in the land register as an owner in the community of heirs.

If a co-heir does not wish to enter into a dispute within the community of heirs regarding the sale of real estate, he or she has the option of selling his or her share of the entire estate in accordance with Section 2033 BGB. However, this decision relates to the entire inheritance and not just the property in question! Whoever acquires the share becomes co-owner of the house. According to Section 2034 (1) BGB, the other co-heirs have a statutory right of first refusal with a notice period of two months. This provision gives the co-heirs the opportunity to prevent third-party purchasers from entering the community of heirs.

If the heirs cannot reach an agreement regarding the sale of the property, there is a risk of a so-called partition auction. This is applied for by the co-heirs willing to sell at the competent local court. The property from the community of heirs is auctioned off in public proceedings and awarded to the interested party with the highest bid. The proceeds from the auction are distributed among the co-heirs.

Although a partition auction provides clarity in the event of disputes between co-heirs, it has many disadvantages. For example, a property is often auctioned below its market value. In addition, a partition auction procedure often takes a long time and involves considerable additional costs. A unanimous agreement on the realization of the joint real estate assets and the subsequent settlement, i.e. the planned dissolution of the community of heirs, is almost always the better solution!

2. division of the residential property between co-heirs

Depending on the situation, it may make sense to divide the property from the estate among the community of heirs. This makes sense, for example, if the house can be divided into several self-contained residential units. In this case, co-heirs can establish their condominium ownership by creating partial ownership by having a declaration of division notarized by a notary. In this case, the residential units are assigned to the co-heirs as property, giving them the sole right to use and manage their share.

3. acquisition of the co-ownership shares

Another way to regulate the retention of a property from a community of heirs is to take over ownership shares: In this case, one co-heir acquires the property for sole use from his or her own capital or through external financing. The other co-heirs receive their share. If the property was originally acquired through construction financing, the co-heir who wants to buy the house takes over the corresponding financing share from the bank.

Settlement of the community of heirs

If several people inherit from a deceased person at the same time, a community of heirs is automatically created as described above. However, the latter is not intended to be permanent and should be dissolved as quickly as possible according to the legislator. For this reason, co-heirs can request the so-called dissolution of the community of heirs at any time (Section 2042 BGB). Settlement is the classic method of ending a community of heirs: as soon as all co-heirs agree on how to proceed, a settlement agreement is concluded which sets out the details of the final distribution of the estate.

Conclusion

If there is a property in the estate of a community of heirs, this particular constellation unfortunately often leads to fierce disputes among the co-heirs. An experienced estate agent knows the requirements that arise in connection with a community of heirs and a house sale. They can provide comprehensive advice to the parties involved and intervene in the event of a dispute.

We at Isar Estate are happy to assist you as a strong partner. Contact us now if you are part of a community of heirs and need to decide on the realization of your real estate assets.

We look forward to supporting you!

+49 (0) 89 901 697 46

info@isarestate.de

Disclaimer

Despite careful research and checking of the sources, the author assumes no liability for the accuracy and completeness of the information presented. In case of unclear legal and tax questions, it is advisable to consult a lawyer and/or tax advisor for clarification.

Author: Dipl.-Kfm. Christian Dürr

Picture credits: istockphoto, 519407057, IPGGutenbergUKLtd