Definition and Terms of an Amicable Division
– Amicable partition and allocation of undivided lots among the heirs
– Amicable partition: recourse
The division of property puts an end to the indivision: each heir receives his share of the inheritance and becomes the owner of it individually. It can be amicable: this supposes that all the heirs agree to leave the indivision. However, if an heir refuses to participate in the partition, the other heirs can give him formal notice, by bailiff’s writ, to be represented in the amicable partition by a person of his choice. The partition can also be judicial in case of disagreement between the heirs.
It is important to know that any heir can ask for the partition and that, according to the law, no one can be forced to remain in indivision. Some heirs may ask to be given priority in the allocation of certain assets of the deceased.
Please note: if the undivided property includes real estate, then the intervention of a notary is mandatory. If there is no real estate, a notary is not required but is still recommended, in particular, so that the amicable partition procedure is supervised by a professional (advice and recommendations).
Amicable sharing and allocation of undivided lots among the heirs
Sharing and allocation techniques
Any heir of an estate has the right to request a partition. Amicable partition assumes that all the undivided heirs agree to put an end to the indivision. It also assumes that the heirs agree on the distribution of the undivided property among themselves.
The agreement between the undivided heirs is recorded in a partition deed, which then ends the indivision. In practice, the heirs of the estate must make up lots of a value equal to each share in the undivided property.
However, some heirs may claim a right of preferential allocation. Similarly, the deceased may have left a will in which he expresses his wish that one of the assets left as an inheritance be attributed preferentially to a specific heir. The case of preferential attribution is, however, strictly regulated by law:
– the dwelling in which the surviving spouse resides;
– shares in a company or a business operated by one of the heirs
– the right to the commercial lease where the business operated by an heir is co-managed, etc.
In the absence of an agreement between heirs of full age and capacity, the lots constituted for the partition of the estate must be drawn by lot. In fact, apart from the cases listed exhaustively by the law, such as preferential allotment, the lots constituted for the partition cannot be allotted according to a means of allotment (a such lot for such heir) but by drawing lots.
The value of a lot does not correspond to the share of rights held by the undivided co-owner
If the value of a lot attributed to an heir does not correspond to his share of rights in the undivided property, it is then necessary to pay compensation in money, called a balance, to rebalance the rights of all the undivided co-owners.
In concrete terms, this means that if the value of the lot of this undivided heir is higher, he will have to pay a balance to the heirs whose lots are worth less than their rights and, conversely, if the value of his lot is lower than his share in the undivided property, he will be entitled to a balance.
Good to know: if there is no money available to consider the payment of the balance, the usual solution is to put one of the undivided properties (real estate in most cases) up for sale, which will allow for a precise division, corresponding to the rights of each person in the inheritance.
It should be noted that the amicable division is not always total: in some cases, it can be only partial if the heirs decide to leave a certain property (for example, a family home) in joint ownership.
Please note: in case of conflict in the realization of the amicable partition, the heirs who wish to do so have the possibility to refer the matter to the judge to proceed to a judicial partition. The competent judge is the president of the judicial court of the place where the estate was opened.
The application to cancel the amicable partition
An heir of the undivided estate may apply to the judicial court of the place where the estate was opened for the annulment of the amicable partition in the following 2 situations
– if his agreement was extorted by violence or deceit. In practice, in these particular cases, the judge can authorize the realization of a complementary partition or order the establishment of a rectifying act;
– if he was forgotten during the succession settlement, the judge can then order that his share be attributed to him in kind or in value.
Please note: in these 2 situations, the heir who considers himself wronged has 5 years to act.
The request for an additional share
An heir can also ask for a compliment in kind or in value, provided that he shows that the lot he received is less than a quarter of what he should have received. This is called a legionary partition.
Please note: in this case, the time limit to act before the judge is 2 years.