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Inheritance law – part V – Division of succession assets part. II

Inheritance law – part V – Division of succession assets part. II

Division of succession assets is regulated by Chapter IX Section IV of the Second Book of the Civil Procedure Code and consequently should lead to the liquidation of co-ownership, which by its nature should be a transitional state.

Division proceedings

In the petition for a division the petitioner should name the decision on confirmation of inheritance acquisition or a certified deed of succession as well as inventory of succession assets, and name all known testaments and their whereabouts. If the inventory has not been drawn up, all succession assets should be named in the petition. In the event if among the assets there is a real estate, there should be presented evidence confirming that the testator was indeed its owner. The most common evidence in such case is an excerpt from the land register.

The composition and the value of the succession assets is determined by court, which means that the court is not limited by demands and claims of the participants. In the event of a dispute on existence of the right to demand the division of succession assets, as well as in the event of a dispute among co-heirs whether a particular item should be enclosed in the succession, the court may issue a preliminary decision.

In the division proceeding the court rules on the existence of legacies, which subjects are items or rights belonging to the succession, as well as mutual demands among co-heirs regarding the possession of individual succession items, collected benefits and other income, expenditures made on the succession and paid succession debts.

If there are no grounds to issue a decision based on the coherent petition of all the participants, the division of succession assets will be heard on the basis of regulations regarding “ordinary” elimination of co-ownership.

During the proceeding for division of succession assets the court rules on the disputes regarding existence of the right to demand the division of co-ownership and the right of ownership, as well as mutual claims among co-heirs regarding the possession of individual succession items. Ruling on the above the court may issue a preliminary decision. With the day of initiation of this proceeding no separate proceeding may be conducted regarding matters mentioned above. Pending cases are transferred to the court proceeding on the division of succession assets. If the procedure was initiated after the ruling was issued the transfer occurs only in the event of annulment of this ruling made be a higher instance. In cases that had not been transferred the proceedings are discontinued and finished with the day when the ruling on division of succession assets becomes final and binding. After this day the participant may not initiate further proceeding on such matters even if they were not a subject of ruling of a division of co-ownership.

Liquidation of co-ownership

Each and every co-owner may demand that the liquidation of ownership went through the physical division of the item, unless the division was contrary to the provisions of the Act or its socio-economic destiny, or entailed a significant change in its essence or significant reduction of its value. If the liquidation of the co-owner ship occurs on the basis of a court decision, the value of individual shares may be evened by a monetary surcharge. In the division of a real estate the court may burden the individual separated parts by necessary land servitudes. The item that cannot be divided, may be attributed, according to circumstances, to one of the co-owners with the obligation to pay off the remaining co-owners or sold according to provisions of Civil Procedure Act. If the court established pay offs, it should also state the deadline and manner of the payment, as well as the amount and date of payment of interest and if needed the way to secure the payments. If the pay offs are to be paid in instalments, the date of payment may not exceed 10 years. In cases deserving special consideration to the request of the debtor court may postpone the deadline for payment of instalments already due.

At the request of two or more heirs, the court may extract their inheritance part from the succession in whole or in part, in such a way that it would grant them a certain item or items belonging to a succession as the ownership in specific fractions.

After the division of succession assets is made the co-heirs are mutually obliged the warranty for physical and legal according to the provisions on the warranty in the sale. This warranty extends to the solvency of the debtor. This regulation refers to the judicial as well as contractual division. It should be noted that appearance of physical or legal defects of the item belonging to the succession may justify the revision of the division proceedings (article 403 § 2 in conjunction with article 524 § 1 Civil Procedure Code).

If the whole succession property or individual things included in it are subject of joint ownership other than by inheritance, the division of succession assets and the liquidation of joint ownership can be combined into a single procedure.

Slightly different rules apply to the liquidation of the co-ownership of the agricultural farm.