An action for partition of an estate, also known as a partition action or inheritance division action, is a legal remedy when a community of heirs cannot agree on the division of the estate. This is often the case when there are multiple heirs and the estate includes assets such as real estate that cannot be easily divided. If the deceased has not made clear provisions, the heirs must reach an agreement among themselves, which is often complicated by old conflicts, envy, or resentment.
Purpose and procedure of the procedure
According to the inheritance law provisions of the German Civil Code (BGB), each co-heir can legally enforce the division of the estate. ” The court decides how the estate assets are to be distributed based on a submitted distribution plan. Even if this doesn’t always resolve disputes among the heirs, it at least dissolves the community of heirs,” explains lawyer István Cocron.
The disadvantage: The process is often expensive, and the auction proceeds may be lower than with an out-of-court settlement. Furthermore, the legal costs must be advanced by the heir bringing the suit.
Requirements for the lawsuit
1. Estate ready for distribution:
– All liabilities, such as funeral expenses or debts, must be settled.
– Indivisible estate assets (e.g. real estate) must have been sold beforehand, e.g. through partition auction.
– Movable estate items such as jewelry can be sold through pawnbroking.
2. No Prohibition of Division by the Testator:
– If there is a prohibition on division or a specific division order, the action is excluded.
However, if all heirs agree, such instructions can be disregarded.
3. Comprehensive Division Plan:
– The distribution plan must take into account all co-heirs and the entire estate.
Gifts or dispositions made by the deceased must be stated.
Who is suing whom?
The lawsuit is brought by the co-heirs who agree with the distribution plan. The defendants are the co-heirs who object to the distribution plan. If the defendants do not agree to the distribution plan, the court decides. If a judgment is rendered in favor of the plaintiffs, the estate is divided accordingly.
Filing of the lawsuit
The lawsuit can be filed in writing through a Lawyer or orally at the probate court.
Contents of the statement of claim:
– Information about the plaintiff and defendant
– Presentation of the facts
– Grounds for the lawsuit and the motions
– complete division plan
The court examines whether all requirements are met. If this is not the case, the lawsuit is dismissed or remanded for improvement.
Procedure of the inheritance settlement process
1. The probate court serves the complaint on the co-heirs, who can then comment on it.
2. Until the property is ready for division, intermediate steps such as actions for performance or declaratory judgment may be necessary.
3. The court decides on the implementation of the division plan.
4. After the implementation, the community of heirs is dissolved.
Costs and risks
– High Procedural Costs: These Include Lawyer, Court and Expert Fees.
– Advance payment by the plaintiff: The plaintiff heir must pre-finance the costs.
– Low auction proceeds: Especially with real estate or other assets, an auction may yield less than a private sale.
– Lengthy proceedings: The partition auction alone can take months or years.
Alternative: Out-of-court Solutions
Given the risks and costs of a partition lawsuit, out-of-court settlements are often more sensible:
– Mediation: Disputes can be settled through professional mediation.
– Selling an inheritance share: Selling an inheritance share to a co-heir or a third party is often a quick and cost-effective solution. The co-heirs have a right of first refusal.
“A lawsuit to settle an inheritance dispute is a complex and often lengthy process that should be considered a last resort. Out-of-court settlements or the sale of the inheritance share are generally less time-consuming and expensive, ” says attorney Cocron.
