Community of heirs: who decides and how to dissolve it

What is a community of heirs?

When a person dies, their assets pass as a whole to the heirs (Sec. 1922 (1) BGB). If there is more than one heir, the estate becomes the joint property of all heirs (Sec. 2032 (1) BGB): the community of heirs has come into existence, and its members are called co-heirs (Miterben). Nobody has to sign or apply for anything for this.

Who belongs to it follows from the will or, if there is none, from intestate succession. If a widowed mother leaves three children and no will, the children inherit in equal shares (Sec. 1924 (1) and (4) BGB), so one third each. The three form a community of heirs.

Not part of the community of heirs:

• Legatees (Vermächtnisnehmer): they only have a claim to the item bequeathed, as a rule against the heirs, but are not co-heirs (Sec. 1939, 2147, 2174 BGB).
• Persons entitled to a compulsory share who have been disinherited: they have a monetary claim against the heirs. More on this in the guide Compulsory share.
• Anyone who has validly disclaimed the inheritance. As a rule, there are 6 weeks from knowledge to do so (Sec. 1944 BGB), details in the guide Disclaiming an inheritance.

Joint ownership: everything belongs to everyone

The community of heirs is a so-called joint ownership community (Gesamthandsgemeinschaft). This means: you do not own one third of the house and one third of the account, but one third of the estate as a whole. You therefore cannot dispose of your share in individual items of the estate (Sec. 2033 (2) BGB). So you cannot sell "your part" of the car, but you can sell your entire share of the inheritance (Erbteil) (Sec. 2033 (1) BGB, more on this below).

Whatever comes in as a replacement for an item of the estate, such as the purchase price for the car that was sold, also belongs to the estate (Sec. 2041 BGB).

Is the community of heirs a GbR?

No. The civil law partnership (GbR) comes into being through a contract with a common purpose (Sec. 705 (1) BGB), the community of heirs by operation of law through the inheritance. Its aim is not to do business together, but to wind up and divide the estate. The Fiscal Code (Abgabenordnung, AO) expressly counts the community of heirs among the associations of persons without legal capacity (Sec. 14a (3) no. 3 AO). Under civil law too, according to the prevailing view, it does not have legal capacity and cannot sue or be sued itself; the contracting parties are always the co-heirs. If you want to hold assets of the estate, such as let flats, together over the long term, you can form a company for this. What makes a GbR is explained in the guide What is a GbR?.

Who decides in the community of heirs?

The management of the estate is the joint responsibility of all heirs (Sec. 2038 (1) sentence 1 BGB). How many have to agree depends on what you are planning:

Measure	Who must agree	Example	Basis
Necessary preservation measure	each co-heir alone	Having the roof provisionally sealed after a storm	Sec. 2038 (1) sentence 2 BGB
Proper management	majority according to shares of the inheritance	Letting a vacant flat in the estate, commissioning a repair	Sec. 2038 (2), 745 (1) BGB
Material change	everyone	Demolishing and rebuilding an apartment building	Sec. 745 (3) BGB
Disposal of an item of the estate	everyone	Selling the house, creating a land charge (Grundschuld), closing an account	Sec. 2040 (1) BGB
Collecting a claim of the estate	anyone can demand payment to all	A tenant's rent arrears, a refund from the health insurer	Sec. 2039 BGB
Applying for a joint certificate of inheritance	each co-heir alone	Certificate of inheritance for the bank and the land registry	Sec. 352a (1) FamFG
Selling your own share of the inheritance	the co-heir alone, notarised	Exit from the community of heirs	Sec. 2033 (1), Sec. 2371 BGB
Applying for a partition auction	each co-heir alone	The parental home on which no agreement can be reached	Sec. 180 ZVG, Sec. 753 BGB

Majority by shares, not by heads. The majority of votes is calculated according to the size of the shares (Sec. 745 (1) sentence 2 BGB). If three siblings inherit one third each, two can outvote the third. If, on the other hand, the will has given Ben 60% and Anna and Clara 20% each, Ben decides questions of day-to-day management alone, even though his sisters are two.

Cooperation is mandatory. Every co-heir must cooperate in measures that are necessary for proper management (Sec. 2038 (1) sentence 2 BGB). Anyone who refuses can be sued for consent. This does not apply to a sale: nobody has to justify why they do not agree to a sale. What then remains is the division of the estate, see below.

Claims go to everyone. Anyone who owes the estate money can only pay all heirs jointly (Sec. 2039 BGB). So the rent does not belong in the private account of one co-heir.

Rights and duties as a co-heir

Until the division, these are your main rights and duties as a co-heir:

• Use: You may use items of the estate as long as you do not impair the others in their joint use (Sec. 743 (2) in conjunction with Sec. 2038 (2) BGB).
• Income: Rents, interest and other fruits are only divided on the division of the estate. If the division is excluded for more than one year, anyone can demand the division of the net income at the end of each year (Sec. 2038 (2) sentences 2 and 3 BGB).
• Costs: The co-heirs bear charges, maintenance and management costs according to their shares (Sec. 748 in conjunction with Sec. 2038 (2) BGB). In practice, they are paid from the estate as long as there is money in it.
• Information: On request, every co-heir must state which gifts subject to equalisation they received from the deceased (Sec. 2057 BGB). Anyone who lived with the deceased at the time of death must provide information about the estate business they conducted and the whereabouts of items of the estate (Sec. 2028 (1) BGB). If a sibling held a lasting power of attorney (Vorsorgevollmacht), there is also a claim to an account of the management of the assets.
• No remuneration by law: If a co-heir takes care of the house, tenants and authorities, the law does not provide for payment. They can demand reimbursement of their expenses, and remuneration only if everyone agrees to it. Put such an agreement in writing.
• Certificate of inheritance: Every co-heir can apply for a joint certificate of inheritance for everyone (Sec. 352a (1) FamFG). How this works and what it costs is explained in the guide Applying for a certificate of inheritance.
• Land register: On death, the land register becomes incorrect; the land registry is to oblige the heirs to have it corrected, but waits as long as there are legitimate reasons (Sec. 82 GBO). Entering the heirs is free of charge if the application is received within two years of the death, even if they are only entered as a result of the division of the estate (no. 14110 note 1 KV GNotKG). Proof: certificate of inheritance or notarial will with the record of opening (Sec. 35 (1) GBO).

A co-heir lives in the inherited house

A common case: one sibling lives in the parental home and pays nothing. Living there alone is initially use under Sec. 743 (2) BGB. The others can, however, demand an arrangement for its use that corresponds to the interests of all at reasonable discretion (Sec. 745 (2) BGB). This can give rise to a claim to compensation for use (Nutzungsentschädigung), as a rule proportionate to the local comparative rent and only from the point at which you expressly demand the new arrangement. So demand the new arrangement early and in writing. The co-heir does not automatically have to move out; you only decide on a sale jointly or through the division of the estate.

Account and bank balances

The balance in the deceased's accounts belongs to the estate. Because the bank can only pay all heirs (Sec. 2039 BGB) and dispositions are only made jointly (Sec. 2040 (1) BGB), a single co-heir can neither empty nor close the account. The bank requires the signature of everyone or powers of attorney, as well as proof of inheritance. If a co-heir had a bank power of attorney that continues after death, they can initially continue to act with it; the other heirs can revoke it. If a co-heir blocks the distribution of the bank balance, the way there is the division of the estate, if necessary only of the money.

Liability: who pays the deceased's debts?

The heir is liable for the liabilities of the estate (Sec. 1967 (1) BGB). These include the debts of the deceased, but also compulsory shares, legacies and testamentary conditions (Sec. 1967 (2) BGB). In the community of heirs:

• Joint and several liability: All co-heirs are jointly and severally liable for joint liabilities of the estate (Sec. 2058 BGB). A creditor can therefore turn to each one individually.
• Protection until the division: As long as the estate has not been divided, every co-heir can refuse to pay debts of the estate from their private assets (Sec. 2059 (1) sentence 1 BGB). The creditor can, however, demand to be satisfied from the undivided estate (Sec. 2059 (2) BGB).
• Pay first, then divide: On the division of the estate, the liabilities of the estate must be settled first; if a debt is not yet due or is disputed, what is needed is retained (Sec. 2046 (1) BGB). For this purpose, the estate may be converted into money as far as necessary (Sec. 2046 (3) BGB).
• After the division, each co-heir is only liable for the part of a debt corresponding to their share of the inheritance if certain requirements are met, for example if the creditor was excluded in a public notice procedure (Aufgebotsverfahren) (Sec. 2060 no. 1 BGB). Otherwise, full liability remains, then also with your own assets.

Practical consequence: do not divide the estate before you know which debts there are. Every co-heir can demand a postponement until the end of a public notice procedure (Sec. 2045 BGB). The heirs can only apply for estate administration (Nachlassverwaltung) jointly and only before the division (Sec. 2062 BGB).

Dissolving a community of heirs: the routes at a glance

Every co-heir can demand the division of the estate (Auseinandersetzung) at any time (Sec. 2042 (1) BGB), i.e. the distribution of the estate and thus the end of the community of heirs. You do not need a reason for this. Which route suits you depends above all on whether everyone goes along with it:

Route	Who must take part	Form	Result	Basis
Estate division agreement (Erbauseinandersetzungsvertrag)	all co-heirs	no form required, notarised if land is involved	the estate is distributed as agreed, the community ends	Sec. 2042 BGB, Sec. 311b (1) BGB
Withdrawal against a settlement (Abschichtung)	all co-heirs	no form required according to case law	one co-heir leaves against a settlement payment, their share accrues to the others	case law
Selling your share of the inheritance	only you (the buyer must agree)	notarisation	you are out, the buyer takes your place; you remain liable for debts of the estate alongside the buyer (Sec. 2382 (1) BGB)	Sec. 2033 to 2035, 2371 BGB
Partition auction	only you (application)	application to the local court	the property is auctioned, the proceeds go into the estate	Sec. 180, 181 ZVG, Sec. 753 BGB
Notarial mediation	application by one co-heir	proceedings before a notary	division plan; in the event of a dispute, the proceedings are suspended	Sec. 363 et seq. FamFG
Action for division of the estate	you as claimant	action with a division plan	a final judgment replaces the consent of the others	Sec. 2042 BGB, Sec. 894 ZPO

Step by step to the division of the estate

1. Determine the estate: a list of all assets and debts with current values, from accounts and real estate to unpaid bills.
2. Obtain proof of inheritance: certificate of inheritance or notarial will with the record of opening for banks and the land registry.
3. Settle debts: first pay the liabilities of the estate, selling items if necessary (Sec. 2046 BGB).
4. Check the will: If the deceased made directions on division (Teilungsanordnungen), for example who gets the house, these must be observed on the division of the estate (Sec. 2048 BGB). If an executor (Testamentsvollstrecker) has been appointed, they carry out the division of the estate (Sec. 2204 (1) BGB).
5. Calculate equalisation: take into account lifetime gifts and care provided among descendants (Sec. 2050 to 2057a BGB, see below).
6. Divide: Money and anything else divisible is divided according to the shares (Sec. 752 BGB). Anything indivisible is sold, for land by compulsory auction if necessary (Sec. 753 (1) BGB), or one co-heir takes it over and pays the others out.
7. Complete: transfer money, hand over items, and for real estate have the land register amended. Family letters and documents concerning the entire estate remain joint property (Sec. 2047 (2) BGB).

Estate division agreement: with or without a notary?

In the estate division agreement, you set out who gets what and who pays out whom. A notary is not always necessary. If the estate consists only of money, securities and movable items, you can reach agreement without a notary; a written agreement signed by everyone is, however, strongly recommended. If the estate includes land and one of you is to take it over or it is to go to a third party, the agreement must be notarised (Sec. 311b (1) BGB). We deliberately do not offer a template to fill in: what belongs in the agreement depends on the estate, on equalisation and on the tax consequences.

Important points for the agreement:

• a complete list of the estate and debts with values,
• who takes over what and which balancing payment is made,
• crediting of gifts and care provided,
• who pays debts and files tax returns, and by when,
• settlement of all claims arising from the inheritance.

Equalisation of gifts and care

Children who become statutory heirs must allow certain lifetime gifts to be credited among themselves on the division. This above all includes an advancement (Ausstattung), such as money for a marriage or for setting up a business (Sec. 2050 (1) BGB, Sec. 1624 BGB). Other gifts are only equalised if the deceased ordered this when making the gift (Sec. 2050 (3) BGB). If the deceased appointed the children in the will with the same shares as under the law, equalisation applies in the same way in case of doubt (Sec. 2052 BGB).

Example: The widowed mother leaves €300,000 and three children, no will. During her lifetime, Anna received €60,000 to set up her business, an advancement. The calculation is as follows (Sec. 2055 (1) BGB):

• estate plus advancement: €300,000 + €60,000 = €360,000
• one third per child: €120,000
• Anna: €120,000 minus €60,000 = €60,000
• Ben and Clara: €120,000 each

Together, that is €300,000, exactly the estate. The value at the time of the gift is decisive (Sec. 2055 (2) BGB).

Care: A child who cared for the deceased over a longer period or who, by working with them or making substantial payments, preserved or increased their assets can demand equalisation among the descendants (Sec. 2057a (1) BGB), but not if they were adequately paid for it (Sec. 2057a (2) BGB). The amount depends on the duration and extent of the contributions and on the value of the estate (Sec. 2057a (3) BGB).

Selling your share of the inheritance or being paid out

If you want to get out without waiting for the others, you can sell your share in the estate as a whole, to a co-heir or to a third party. The contract must be notarised (Sec. 2033 (1), Sec. 2371 in conjunction with Sec. 1922 (2) BGB). The buyer takes over your position in the community of heirs with all rights and duties.

Co-heirs' right of pre-emption: If you sell to a third party, the other co-heirs may acquire the share of the inheritance on the same terms (Sec. 2034 (1) BGB). They have two months to do so (Sec. 2034 (2) BGB), calculated from notification of the purchase agreement (Sec. 464 (2), Sec. 469 (2) BGB). If the share has already been transferred to the buyer, the right of pre-emption is directed against the buyer; you must notify the co-heirs of the transfer without undue delay (Sec. 2035 BGB). You can sell to a co-heir without the others having a right of pre-emption.

When selling to an outside buyer, you usually have to expect a discount on the arithmetical value, because the buyer is buying the dispute as well. So work out beforehand what you would be entitled to in a regular division.

Withdrawal against a settlement (Abschichtung): Instead of selling, you can agree with the others that you leave the community of heirs against a settlement payment. Your share then accrues to the remaining co-heirs, and the community continues among them. According to the case law of the Federal Court of Justice (Bundesgerichtshof, BGH), withdrawal against a settlement is possible without a notary even if there is land in the estate. Because everyone has to agree, it requires unanimity.

Partition auction: when there is no agreement on the property

A plot of land cannot be split into parts of equal value. If no agreement on a sale or takeover is reached, each co-heir can alone apply for a compulsory auction to dissolve the community (Sec. 753 (1) BGB, Sec. 180 (1) ZVG). They do not need an enforceable title (Sec. 181 (1) ZVG); they must, however, be entered as owner in the land register or be the heir of the registered owner (Sec. 181 (2) ZVG). The local court (Amtsgericht) in whose district the land is located has jurisdiction (Sec. 1 (1) ZVG).

Within a non-extendable time limit (Notfrist) of two weeks, the other co-heirs can apply for the proceedings to be stayed for a maximum of six months if this is appropriate when the interests are weighed; this can be repeated once (Sec. 180 (2), Sec. 30b (1) ZVG). The proceeds take the place of the land and belong to the estate (Sec. 2041 BGB); they are only distributed on the division of the estate (Sec. 2046, 2047 (1) BGB). Co-heirs may bid themselves (Sec. 184 ZVG). The process and costs are explained in the guide Partition auction.

When a co-heir blocks: mediation and legal action

Notarial mediation: At the request of a co-heir, a notary mediates the division of the estate, unless an executor is responsible for it (Sec. 363 (1) FamFG). The notary draws up a division plan (Sec. 368 (1) FamFG). Anyone who does not appear and does not apply for a new appointment either is deemed to agree (Sec. 366 (3) and (4), Sec. 368 (2) FamFG). If a co-heir objects at the appointment, the notary cannot decide the dispute: they record the points in dispute in minutes and suspend the proceedings until these are resolved (Sec. 370 FamFG). The proceedings incur a fee of 6.0, which is reduced if they end early (no. 23900 to 23903 KV GNotKG). It is based on the value of the estate without deduction of debts (Sec. 118a, Sec. 38 GNotKG), so for larger estates it is a noticeable amount.

Action for division of the estate (Erbteilungsklage): If a co-heir remains stubborn, you can sue the others for consent to a division plan. The plan must cover the entire estate and comply with the statutory rules on division; the estate must be ready for division, i.e. debts settled and real estate realised, for example. The proceedings are complex. It often makes more sense to first turn the property into money through agreement or a partition auction and then argue about money.

Can dissolution be excluded or postponed?

• By the will: The deceased can exclude the division of the estate for the entire estate or for individual items, or make it subject to a period of notice (Sec. 2044 (1) BGB). The order generally becomes ineffective once 30 years have passed since the death (Sec. 2044 (2) BGB). If there is good cause, dissolution can be demanded nonetheless (Sec. 2044 (1) sentence 2 in conjunction with Sec. 749 (2) BGB).
• By the heirs themselves: If you agree not to divide for a period of time, dissolution for good cause still remains possible (Sec. 2042 (2) in conjunction with Sec. 749 (2) BGB).
• By law: where shares of the inheritance are not yet determined, for example because of an expected birth (Sec. 2043 BGB), and on request until the end of a public notice procedure (Sec. 2045 BGB).
• No time bar: The claim to dissolution does not become time-barred (Sec. 758 in conjunction with Sec. 2042 (2) BGB).

Community of heirs among siblings: typical points of dispute

Most communities of heirs consist of siblings, often after the death of the second parent, for example with a Berlin will. The conflicts are similar:

• The parental home: One wants to keep it, the others want money. The solution is often a takeover against a payout at a value determined by an expert. Agree beforehand which valuation applies, so that not everyone pays for their own.
• Care, gifts, power of attorney: Whoever cared for the parents, received money earlier or managed their account is a case for equalisation and information (Sec. 2050, 2057, 2057a BGB, see above).
• A co-heir dies: If a sibling dies after the inheritance but before the division, their share of the inheritance passes to their own heirs (Sec. 1922 (1) and (2) BGB), for example to their spouse and children. They take the sibling's place in the community of heirs, and the group gets larger. If the time limit for disclaiming had not yet expired, their heirs can still disclaim (Sec. 1952 BGB). If a child dies before the parent, under intestate succession that child's children take its place (Sec. 1924 (3) BGB).
• A co-heir cannot be found: If an heir is unknown or it is uncertain whether they have accepted the inheritance, the probate court (Nachlassgericht) secures the estate and can appoint an estate guardian (Nachlasspfleger) (Sec. 1960 BGB). If the co-heir is known but their whereabouts are unknown or they are prevented from returning, a guardianship for absent persons (Abwesenheitspflegschaft) for their financial affairs may be considered; the guardianship court (Betreuungsgericht) has jurisdiction (Sec. 1884 BGB, Sec. 340 no. 1 FamFG).

Taxes in the community of heirs

You should clarify tax questions with a tax adviser. Three principles:

• Inheritance tax: It is not the community of heirs that is liable to tax, but each co-heir for their own acquisition. Each has their own tax-free allowance, for children for example €400,000 (Sec. 16 (1) no. 2 ErbStG).
• Real estate transfer tax: If a co-heir takes over a plot of land from the estate to divide the estate, this is exempt from real estate transfer tax; this also applies to the spouses of the co-heirs (Sec. 3 no. 3 GrEStG). If a third party buys the land or acquires it at auction, the tax is usually payable (Sec. 1 (1) no. 4, Sec. 3 GrEStG).
• Ongoing income: If the community of heirs earns income, such as rent from a flat in the estate, it is as a rule determined separately and attributed to the co-heirs proportionately (Sec. 180 (1) sentence 1 no. 2 letter a AO); a declaration for separate determination (Feststellungserklärung) must be filed for this.

Avoiding a community of heirs: what testators can arrange

Anyone who wants to spare their children the dispute can plan ahead:

• Sole heir with legacies: One child inherits, the others receive money or particular items as a legacy. No community of heirs then arises.
• Direction on division (Teilungsanordnung): Set out in the will who gets the house and how the others are compensated (Sec. 2048 BGB).
• Executor: They divide the estate according to the statutory rules and consult the heirs on the plan beforehand (Sec. 2204 BGB).
• Usufruct or right of residence: If a parent is to remain in the house but the children are already to become owners, a lifetime transfer with a reservation may be considered. More on this in the guide Usufruct.

You can find an overview of all topics relating to inheritance in the guide Inheritance law.