Inheritance: division between heirs

Legal regime

In general, you and other heirs make decisions about undivided property either tounanimity, or a majority of 2/3. In rarer cases, a indivisary can make the decision alone. The rules differ depending on the type of decision to be made.

In case of disagreement, you or any other heir can apply to the court for the appointment of a judicial representative. The Trustee will be responsible for the interim management of the succession.

The majority of 2/3 of the undivided rights and the majority of 2/3 of the heirs are sometimes different.

Convention

You and the other heirs may decide to establish an agreement to fix the rules of operation of the division.

The agreement shall comply with the following conditions:

• Be in writing
• List the assets of the division
• Specify the rights of each heir (also called indivisary)

The agreement may have a fixed term, up to a maximum of five years, which may be renewed. It may also be fixed for an indefinite period.

To manage the division, you and other heirs can name one of you or someone else. This person is called the representative. There may be several agents. You can include it in the convention. You can also make the decision later.

Each year, the trustee must report to you on his management.

He can be paid. If this is the case, his remuneration is at your expense.

The agent may not transfer ownership of property to the beneficiary of his choice. For example, he is prohibited from selling real estate.

Use of undivided assets 

To use the undivided property, you must meet the following 3 conditions:

• Have the agreement of the other indivisaries. If not, you must contact the President of the Judicial Tribunal.
• Respect the destination of the good, that is to say what the good is made for. For example, an indivisor cannot turn a house built for residential use into a commercial space.
• If you use an undivided property alone, pay compensation to the other undivided parties, unless the latter decide otherwise.

Assignment of rights in the division

You or another indivisor may sell your rights in the indivisor under certain conditions.

If the buyer is a third party to the division, you must, beforehand, notify by an act of the Commissioner of Justice (formerly bailiff and judicial auctioneer) your intention to assign your rights to the other members of the division. You must also notify the price, the terms of the proposed transfer and the name, domicile and occupation of the person proposing to purchase.

The other indivisaries remain a priority to purchase the share you are giving up. Indeed, any indivisor may, within the period of1 month after the notification, let you know that they are taking back your share at the prices and conditions notified to them.

Retention in undivided

If the indivists do not agree, the court can uphold the division to protect their interests.

Judicial retention in undivided status may include the following situations:

• Company operated by the deceased or by his or her spouse
• Dwelling or business premises used by the deceased or his or her spouse at the time of death

In the presence of a minor heir, the application for retention in the undivided relationship may be made by the surviving spouse, a major heir or the legal representative of the minor heir. If there is no minor heir, the application must be made by the surviving spouse.

The application must be made to the court of the place where the property is located.

If granted, the maintenance in undivided status may not exceed 5 years. It is renewable in certain cases (for example until the majority of the youngest child or until the death of the spouse as the case may be)