Community of heirs

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This article or paragraph presents the situation in Germany . Help us to describe the situation in other countries.

According to German law, a community of heirs is a group of people who collectively receive the estate of a deceased person ( § 2032 BGB). Individuals are referred to as co-heirs in contrast to sole heirs .

Community of hands

The co-heirs do not acquire ownership of the individual estate on a fractional basis, but are jointly entitled ("to the whole hand") to the undivided estate ( joint ownership ). This difficult to understand legal figure of the whole hand comes from Germanic law, while the German Civil Code is otherwise shaped by Roman law. An available through a joint heirs through a single estate subject or a fraction of it is not possible ( § 2033 BGB). However, each co-heir can dispose of his share of the entire undivided estate, i.e. his portion of the inheritance ( § 2033 ), e.g. B. through inheritance sale ( § 2371 BGB).

Examples:
  • For the “entire hand”: If the estate consists of only four identical gold coins, then not each co-heir does not own a coin, but the coin collection as a whole belongs to the four co-heirs together. If 4,000 euros were inherited in cash, each co-heir does not belong to 1,000 euros, but the four co-heirs share the 4,000 euros .
  • on “Disposal by (only) one co-heir”: A co-heir cannot claim one of the coins; the four co-heirs must unanimously decide what to do with the coins (e.g. “everyone gets one” or “are sold together as a collection, the proceeds are then shared”).
  • to “can dispose”: A co-heir can sell his 1/4 share of the common gold coin inheritance, but not 1/4 of each of the four gold coins.

The community of heirs has no legal capacity . A contract concluded by a representative of a community of heirs is therefore not concluded with the community of heirs as such, but only with the individual co-heirs. The community of heirs can therefore in particular not be entered as such, but only each individual heir with a reference to the joint ownership in the land register.

Example:

An entry in the land register “Community of heirs according to Johann von Goethe” is not possible; however, “Albrecht von Goethe and Christiane von Goethe in community of heirs after Johann von Goethe” is possible.

The members of the community of heirs can, however, found a society under civil law with the purpose of permanently administering the inheritance.

administration

The co-heirs manage the estate jointly ( § 2038 BGB).

Each co-heir is obliged to take part in measures that are necessary for "proper administration" to the others. The measures necessary for maintenance (e.g. sealing a leaky house roof) can be taken by any co-heir without the involvement of the others ( Section 2038 BGB). The co-heir community decides by (informal) resolution. With regard to measures of proper administration, the majority of votes of the shares decides ( § 2038 , § 745 BGB).

Whether it is a "measure of proper administration" has to be decided on a case-by-case basis. To consider is z. B. the cost-benefit ratio and the risk of disadvantaging a co-heir. Proper administration includes necessary repair and maintenance measures (if there are sufficient funds in the estate) or the termination of the testator's lease.

Every co-heir can request the use of the estate (e.g. use of the deceased's marital home by the surviving spouse) if no usage agreement has been made ( § 2038 , § 745 BGB). If a co-heir refuses to agree to an appropriate user agreement and uses the estate nonetheless, the other co-heirs can demand compensation for use. The compensation for use is only due when it has been requested.

A major change in the estate cannot be demanded by majority vote ( § 2038 , § 745 BGB). So a co-heir z. B. not demand that the testator's house be sold if this is the only valuable inheritance item. Such essential changes are part of the inheritance dispute .

A disposition usually requires a unanimous decision by the community of heirs. If the interests of the other co-heirs aimed at preserving the estate cannot be adversely affected by the disposition, however, according to new and controversial case law, a majority of votes may be sufficient in exceptional cases. Therefore z. B. the termination of a lease, which is in the sense of the proper management of the community of heirs, also possible by majority resolution.

The sharing of the fruits (e.g. rental or interest income) does not take place until the dispute ( § 2038 BGB). If the dispute is excluded for a longer period than a year, each co-heir can request the sharing of the net income at the end of each year ( Section 2038 BGB). The co-heirs can, however, decide otherwise by unanimous decision. In exceptional cases, a majority resolution may suffice.

Each co-heir can demand consent to the premature sharing of the fruits if the refusal is unlawful.

Example:

A rented property is part of the estate. The income from renting the property is added to the income of the co-heirs in accordance with the inheritance shares. This applies even if the rental income, the "fruits", is not distributed. The co-heirs therefore pay income tax on an income that is actually not available to them. This can lead to considerable liquidity problems for the co-heirs. The co-heirs can therefore demand, in good faith, that at least the amount of the income tax due on their share of the fruit is distributed. Of course, this cannot apply if creditors of the estate demand repayment of the estate's liabilities and the estate is threatened with damage if they are not paid.

Litigation and enforcement

Regardless of the consent of the other co-heirs, a co-heir can assert rights of the community of heirs in court in his own name (active litigation status ), although he can only demand (according to the material legal situation) that the community of heirs is given joint ownership ( Section 2039 BGB) .

Just as the individual co-heir can act as a litigator for all co-heirs, he can also carry out foreclosure alone. It is irrelevant whether the enforcement title was obtained by him alone or by all co-heirs together. There is a legal status of enforcement.

Dissolution of the community of heirs

Hereditary dispute

The community of heirs is dissolved through the (complete) dispute . This usually happens when the division of the inheritance among the members of the community of heirs has been completed.

In addition, the community of heirs also ends if the penultimate member of the community of heirs leaves due to death, as a result of the transfer of an inheritance or as a result of separation (right) ; in these cases the remaining person becomes the sole heir.

In the case of an inheritance dispute by dividing the estate, the members of the community of heirs make an agreement on the dispute, the so-called dispute contract, in the first step.

Example:

The co-heirs agree on the following division:

  • A receives 100,000 euros
  • B receives an apartment worth 100,000 euros
  • C receives a car worth 100,000 euros

The dispute agreement can in principle be agreed orally or in writing, expressly or through conclusive action. However, if there are items in the estate that need to be transferred in a notarial form (e.g. real estate, shares in a GmbH), the dispute agreement requires notarial certification in order to be effective .

In the second step, the members of the community of heirs carry out the inheritance dispute by dividing the objects of the estate among the individual co-heirs. This implementation is also referred to as division , see § 2059 , § 2060 BGB. Then the community of heirs is over.

Example:

The co-heirs arrange the following:

  • Transfer of 100,000 euros from the estate account to an account of A.
  • Entry in the land register of B as sole owner.
  • Delivery of the vehicle registration document to C and agreement that he should now be the owner.

As a rule, a co-heir cannot demand a partial discussion. On the other hand, each co-heir can request a full discussion at any time (cf. § 2042 BGB), but not in the following cases:

  1. Due to the expected birth of a co-heir, the portions of the inheritance are still indefinite (cf. § 2043 BGB).
  2. The portions of the inheritance are still undetermined because the decision on an application for adoption as a child, on the cancellation of the adoption relationship or on the recognition of a foundation established by the testator as having legal capacity is still pending (cf. § 2043 BGB).
  3. The testator has ruled out the dispute (cf. § 2044 BGB).
  4. A public announcement procedure is in progress (cf. § 2045 BGB).
  5. The estate liabilities have not yet been adjusted (cf. § 2046 BGB).

Payment of co-heirs

If the heirs are in agreement, it is possible that one of the heirs will pay the others and become the sole owner of the estate. The decisive factor is not the monetary value that the estate had at the time of the inheritance, but the monetary value that was determined on the day the community of heirs was dissolved.

Sale to third parties

The community can jointly transfer the inheritance to a third person. However, this is only possible if all co-heirs agree. The sales price is then divided among the community of heirs and the community of heirs is thereby dissolved.

Division auction

If the community of heirs cannot agree on the sale of a property belonging to the inheritance and the testator has not issued an order in the will, the property can only be realized through the foreclosure auction of the property, the so-called division auction , which dissolves the community of owners. The dissolution of the community of heirs is only terminated by the full inheritance dispute.

literature

Web links

Wiktionary: Community of heirs  - explanations of meanings, word origins, synonyms, translations

Individual evidence

  1. ↑ BGH, judgment of September 11, 2002 , Az. XII ZR 187/00
  2. ↑ BGH, judgment of September 11, 2002 , Az. XII ZR 187/00
  3. ^ Judgment of the Federal Court of Justice of November 11, 2009 - XII ZR 210/05 with note Lorenz , XII ZR 210/05.
  4. ↑ RGZ 81, 243; OLG Hamburg MDR 1965, 665.
  5. ↑ See Staudinger margin no. 43 on § 2038 BGB with reference to LG Halle JW 1937, 643.
  6. ↑ RGRK / Kregel, § 2038 margin no. 11 mwN
  7. ^ LG Halle JW 1937, 643.
  8. ^ KG, NJW 1957, 1157.