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If a testator has several heirs, they form a community of heirs. We explain how this is designed and how the joint heirs are mutually committed. In particular, it is relevant what happens if an heir does not agree with the obligation and how they are then liable.

1st community of heirs declared

1.1. Creation of the community of heirs

As a rule, a decedent leaves several heirs, to which his property as a whole passes in the case of succession. Then the estate becomes the joint property of the heir. This creates an overall community of hands called a community of heirs. The individual co-heirs are entitled to a share of the property, which is measured according to his inheritance quota. The heirs can therefore only dispose of the estate together.

The reason why the assets become total assets is that the creditors of the estate have an interest in maintaining the estate as a uniform basis of liability. They first had a claim against the deceased. for whom all his property was liable.

1.2 Legal capacity of the community of heirs

The overwhelming view is that the community of heirs as such is not legally competent. Rather, it is an overall majority of people. This is assigned a special property by the estate. In particular, the community of heirs is structured quite differently compared to a civil society (GbR). According to § 705 BGB, a GbR is concluded by concluding a social contract. On the other hand, the community of heirs arises in the presence of several heirs by law through the succession. Furthermore, the GbR is aimed at achieving a common purpose, while the community of heirs is aimed at dispute. Therefore, GbR and community of heirs are not comparable. It follows that the GbR and the fractional community are not comparable. Therefore, the legal capacity of the fractional community cannot be derived from the legal capacity of the GbR.

Commitment of the other joint heirs by the community of heirs

2.1. Community of heirs not obligated per se

In order to preserve the estate, it may be necessary for the co-heirs to carry out, for example, restoration work. Then it is crucial whether all co-heirs are obliged by any contracts. First of all, it must be recognized that the co-heirship as such cannot itself be legally obliged because of the lack of legal capacity. Therefore, contractual relationships can only exist with the individual co-heirs. This is the case if all joint heirs were effectively represented by the contracting party at the time of conclusion of the contract.

2.2 Obligation of joint heirs via §§ 2038 paragraph 2 , 745 paragraph 1 BGB

In order for the other co-heirs to also be contractually obliged, the contracting party must therefore effectively represent them at the conclusion of the contract. For this purpose, the contracting party must have acted on behalf of the community of heirs. This makes it clear that the legal consequences not only affect the contracting party, but also affect all joint heirs. The problem, however, is whether there is also representative power to conclude the contract.

The power of representation could result from § 2038 paragraph 2 BGB, which refers to § 745 paragraph 1 BGB. According to § 745 (1) BGB, a proper administrative measure can be adopted by a majority vote, which is calculated according to the size of the shares. Since the power of representation of the joint heirs is not specially regulated by law, but the community of heirs must be capable of acting as necessary for traffic, § 745 (1) BGB is also applicable to the power of representation in the case of a community of heirs.

Therefore, the co-heirs are authorised to take proper administrative measures. The administration shall include all actual and legal measures for the preservation, safekeeping, security or use and increase of the estate. They must serve the nature of the object, correspond to the interest of all co-heirs at reasonable discretion and must not constitute a substantial modification of the object. The assessment of the material change shall be based on the entire estate as total assets and not on a specific individual right. Otherwise, any disposal of an estate would be a substantial change and such measures would never be proper. In addition, it must be examined whether a reasonable and economically minded joint inheritance of the measure would be appropriate. If these conditions are met, a majority vote is sufficient, which is determined by the greeting of the inheritances. Therefore, the hereditary quota by way of the legal or arbitrary succession is decisive.

2.3 Obligation of co-heirs according to § 2038 paragraph 1 BGB

In addition, each joint heir can take necessary conservation measures in accordance with § 2038 (1) sentence 2 BGB alone. A necessary conservation measure in this sense exists when there is a threat of loss or substantial deterioration of the object, the costs to be incurred are proportionate to the conservation interest and the measure is of such urgency that it cannot be deferred and an agreement cannot be reached. If one of the co-heirs has therefore rejected the conservation measure, no individual representation authority can arise.

3. Liability of joint heirs to the community of heirs

3.1. Liability as a joint debtor

The heirs are liable to a community of heirs in accordance with § 2058 as joint and several debtors for succession liabilities. According to § 1967 BGB, this includes on the one hand the debts of the decedent – i.e. the liabilities that were already established in the person of the decedent at the time of the succession. On the other hand, this also includes the inheritance debts, i.e. the liabilities that arise on the occasion of the inheritance. However, if a contract was entered into after the succession, it does not form part of the debts of the succession. However, liability is extended beyond the wording to so-called inheritance management debts and estate inheritance debts. This includes liabilities incurred only after death by the estate administration and those incurred by the heir in the administration of the estate. Correct administrative measures are therefore part of the estate liability as an estate inheritance debt.

Then the joint heirs are liable as joint debtors. Therefore, the creditor is liable to any inheritance in full, so that the creditor has the choice of whom to claim. However, he only gets the blame once. The creditor can also demand satisfaction from the undivided estate of the joint heirs' total hand assets, so-called total hand claim.

3.2. Limitation of liability

In addition, it is necessary to clarify with which assets the heirs are liable. Since § 1975 to § 1992 BGB regulates how each heir can limit his liability to the estate, each heir is liable in principle for the debt to the estate with his entire assets. Therefore, the liability amounts to the estate and own assets.

Liability can otherwise be limited by applying for an estate administration or estate insolvency in accordance with §§ 1980, 1981 BGB. Then the assets are separated and the liability of the heir is limited to the estate. Estate administration may be ordered for no particular reason. Estate insolvency, on the other hand, requires a certain opening reason. These include, for example, the insolvency or over-indebtedness of the estate.

Even if estate administration or estate insolvency have not been applied for, any heir may raise the deficientness plea against the estate creditors in accordance with § 1990 BGB. This likewise limits the liability to the estate. This is possible if the estate court would reject an application for estate administration due to lack of assets

The last possibility to limit liability is to make the objection of the undivided estate before the division of the estate in accordance with §2059 (1) sentence 1 BGB. Even then, the adhesion is limited to the own estate part.

4th Conclusion

Therefore, the heirs of the community of heirs are liable for incurred liabilities of another joint heir even if they do not agree with it. This can be avoided by rejecting the inheritance or challenging the acceptance of the inheritance. Otherwise, liability can only be limited to the inheritance.