The Legal Nature of the Community of Heirs
As soon as several persons become heirs, a community of heirs (Erbengemeinschaft) is formed by operation of law (Section 2032 BGB). The essential characteristic is the principle of joint ownership (Gesamthandsgemeinschaft): the heirs do not own fractional shares of individual items, but rather own the estate collectively as a whole. No co-heir may unilaterally dispose of individual estate assets – such as real estate or jewellery. In practice, this legal bond often leads to a deadlock, as many decisions require unanimity or at least a majority vote. Professional legal assistance helps to secure the community's ability to act by providing a clear legal classification of powers and authorities.
Joint Administration of the Estate: Rights and Duties of Co-heirs
Until the final distribution, the estate is administered as joint assets. Administration is governed by Section 2038 BGB in conjunction with Sections 744 et seq. BGB. While measures of "ordinary administration" can be decided by a majority vote (Section 745 Para. 1 BGB), significant changes ("extraordinary administration") require unanimity. Necessary measures for preservation ("emergency administration") may be taken by any co-heir alone if there is an imminent risk of loss or damage (Section 744 Para. 2 BGB). If one co-heir uses an estate property exclusively, the other heirs may demand appropriate compensation for use (Nutzungsentschädigung), provided they request a corresponding restructuring of the administration.
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DR. SCHMIDT LEGAL supports you in actively exercising your administrative rights and preventing unauthorised unilateral actions by other co-heirs.
Dissolution of the Community
The ultimate goal of every community of heirs is its dissolution and distribution (Erbauseinandersetzung pursuant to Section 2042 BGB). This process is often arduous, as all estate liabilities must first be settled before the remaining assets can be divided. The challenge lies in the fact that physical assets (such as real estate) must be divided in kind where possible. If this is not feasible, the assets must be "liquidated" – either through a private sale or, as a last and often economically disadvantageous resort, through a partition auction (Teilungsversteigerung).
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DR. SCHMIDT LEGAL drafts distribution agreements (Auseinandersetzungsvereinbarungen) for you that enable an amicable solution and avoid costly, year-long litigation.
Right to Information and Accountability among Co-heirs
A common obstacle to a swift settlement of an estate is a lack of transparency. Co-heirs may, under certain conditions, have mutual rights to disclosure – particularly where one co-heir has administered the estate alone (§ 2038 BGB in conjunction with § 666 BGB by analogy). In addition, descendants may request disclosure from one another regarding gifts made by the deceased during their lifetime that are subject to hotchpot (§ 2057 in conjunction with § 2050 BGB). As a rule, however, information is obtained primarily on the basis of the heir's own status directly from banks, insurance companies, the land registry and similar institutions. Only those who know the exact composition of the estate can claim their fair share.
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DR. SCHMIDT LEGAL consistently enforces your rights to information and ensures that all value-relevant factors – from bank balances to corporate interests – are fully disclosed.
Conflict Resolution and Judicial Enforcement
If communication within the community of heirs fails, the only remaining path is often a partition lawsuit (Erbauseinandersetzungsklage). Since this lawsuit is directed at obtaining the consent of the co-heirs to a specific distribution plan, it requires highly precise preparation. Errors in the distribution plan inevitably lead to the dismissal of the claim.
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Before taking this radical step, DR. SCHMIDT LEGAL explores alternative paths, such as the sale of an inheritance share (Erbanteilsverkauf) or severance (Abschichtung – exiting the community in exchange for a settlement). These methods often achieve the goal faster and preserve both family assets and personal relationships.