Division of inheritances: What You Should Know When Dividing the Property with the Other Heirs Is Difficult (Part One)

It is not always easy to divide up inheritances and allocate your property. For situations in which the inheritance is stopped, we bring the concept of inheritance sharing or common property sharing procedure.

In this type of case, we emphasize the importance of negotiation skills, as it will be very important to make the lawyers of the other heirs understand the importance of reaching the best agreements to avoid economic damage and delays.

What Is the Partition of the Estate?

The partition of the estate is the specific act by which, once the inheritance has been accepted by the heirs, the hereditary property is divided among the members of the hereditary community.

There are three main types of partition: Voluntary, judicial and by accountant-divider.

What Is the Community of Heirs?

The community of heirs is formed when a person dies leaving property to several heirs and the deceased did not determine the distribution of the property in the will or there is no will.

This community is transitional until the inheritance is divided and the co-heirs do not have rights or quotas on specific assets. It is a form of co-ownership, so all community property can be sold if it is done unanimously by the heirs.

When Is There an Estate Division?

An estate division is a process that takes place when a person dies and the following conditions are met:

  • There is no will or the will has not established the distribution of property among the heirs.
  • The deceased leaves an inheritance.
  • There is more than one proposed heir to receive the property.

Division of the Estate in the Presence of a Will

The deceased may have set out the distribution of the property in the will or may have appointed a testamentary divider, a person who is not an heir, to distribute the property.

Dividing the Estate without a Will

The heirs themselves are responsible for determining the distribution of the property by mutual agreement.

In this case, this is where the most problems usually arise between the heirs when faced with problems of valuation or adjudication.

Judicial Division of the Estate

Judicial division of the estate or testamentary process is a procedure that takes place when there is no agreement between the heirs to divide the property.

In this case, any co-heir can request a judicial division of the property, provided that the division is not carried out by a commissioner or a partition accountant appointed by the testator.

The procedure consists either in the heirs unanimously or in the court appointing a partition accountant, who will be in charge of preparing the partition book, which is a document listing all the operations of the partition phase of an estate:

  • The inventory of the estate’s assets and debts.
  • The settlement of debts.
  • If applicable, the liquidation of the community property will also be included.
  • Allocation of property to each heir.

If the heirs agree on the distribution, it will be decided by the court, otherwise there will be a trial during which the judge will hear the heirs and decide.

The valuation of the houses and the balance at the date of death are usually two very debatable aspects when it comes to dividing the inheritance.

Who Can Apply for the Division of the Estate?

The division of the inheritance can be requested at any time by the co-heirs of the deceased if they are of age and have the free disposal and administration of their property. Their legal representatives may do so in their absence.

Heirs who are minors or whose capacity has been judicially modified must be legally represented.

Is It Possible to Divide the Inheritance with a Will?

It is possible that the deceased has established in his or her will the distribution of his or her property and, in this case, the will of the deceased must be respected, as long as it does not prejudice the legitimate heirs.

The testator may also designate in his will a testamentary divider accountant, who will be responsible for dividing and distributing the hereditary property among the heirs.

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