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Inheritance Division | What to Do When Siblings Disagree Over Inheritance? How Is It Divided?
In practice, it is common for siblings to disagree over how to divide their parents' inheritance after their passing. Even the best sibling relationships can fracture in the face of inheritance issues. According to the Civil Code, when there are multiple heirs, before the division of the estate, all heirs hold the estate in common (Civil Code Article 827). This means that before division, the legal relationship between the heirs concerning the estate is in common ownership, and any disposition of the estate or exercise of rights over it generally requires the unanimous agreement of all co-owners, which can be quite complicated!
What Is the Procedure for Dividing an Inheritance?
The division of the estate is meant to dissolve the legal relationship of common ownership between the heirs. Once the estate is divided, the heirs' relationship to the estate (including movable and immovable property) shifts to shared ownership, allowing each heir to independently manage and dispose of their share.
There are three main procedures for dividing an estate
Pre-arranged Will:To respect the freedom of the testator (the deceased), the testator can specify how the estate is to be divided through a will. This method is known as "designated division." Civil Code Article 1165 stipulates that if the testator has specified a method for dividing the estate or entrusted someone to do so, the specified method shall be followed.(Related reading: Inheritance | How to Write a Legal Will? How Strong Is the Effect of a Will?)
Agreed Division:If all heirs reach a consensus, they can discuss and sign an agreement to divide the estate. As they are family, if everyone can sit down and agree on how to divide the inheritance, this method can be used, often leading to a harmonious outcome. However, even after reaching an agreement, it does not mean that each heir automatically owns their portion of the estate. If any part of the agreement is not fulfilled, heirs have a "right to request fulfillment." Once the agreement is set, unless all heirs agree to it, no single heir can demand a redivision of the estate, nor can any heir exclude others' division rights.
Judicial Division (Inheritance Division Lawsuit):If the heirs cannot reach an agreement, such as disputes over the allocation ratio, if an heir is physically unable to express their intentions, or if one heir is missing, they can take the matter to court. Any heir can file for judicial division, but it's important to note that all heirs must be sued together.
How Is the Inheritance Divided?
According to Civil Code Article 824, if the method of division cannot be agreed upon, or if an agreement is not honored due to the expiration of the limitation period, the court can, upon the request of any co-owner, divide the estate using the following methods:
Method | Explanation | |
Section 2, Paragraph 1 | Physical Division | The property is physically divided among the co-owners. If this is too difficult, part of the property may be distributed to some co-owners. |
Section 2, Paragraph 2 | Sale of Property | If physical division is too difficult, the property may be sold, and the proceeds distributed among the co-owners. Alternatively, part of the property may be distributed to some co-owners, and the remainder sold, with the proceeds distributed. |
Section 3 | Monetary Compensation | If a co-owner does not receive their rightful share, they may be compensated with money. |
Section 4 | Partial Continuation of Common Ownership | If necessary for the benefit of the co-owners or other reasons, part of the property may remain under common ownership. |
In simple terms, if all co-owners cannot agree, the court will distribute the property to each co-owner. If this is too difficult, the court may allocate part of the property to some heirs and sell the rest, distributing the proceeds. If physical distribution is not possible, the property may be sold, and the money divided among the heirs.
Common Questions About Inheritance Division
Q1. How to Write an Inheritance Division Agreement?
A: Besides seeking assistance from a professional lawyer, individuals can also download sample agreements from government websites (such as the Taipei City Government's Citizen Service Platform) if they wish to write the agreement themselves. Be sure to include all necessary details, such as what is being divided, who will receive it, the quantity, scope, and location of real estate. If any details are overlooked, future disputes are likely. If the inheritance situation is complex or there are potential disputes, it is advisable to seek professional legal assistance.
Q2. Does the Inheritance Division Agreement Need to Be Notarized?
A: The law does not require notarization of the agreement. Once all heirs have signed the agreement (everyone must sign), it becomes effective. However, a notarized or lawyer-witnessed agreement can help ensure its legality in future legal disputes. Moreover, a notarized agreement can have enforceability in court.
Q3. Do I Need to Pay Inheritance Tax Before Filing an Inheritance Division Lawsuit?
A: Yes, according to regulations, whether the inheritance is divided by will, agreement, or judicial division, inheritance tax must be paid first.(Related reading: Inheritance | How to Calculate and File Inheritance Tax?)
Q4. Is Filing an Inheritance Division Lawsuit Expensive? How Much Does It Cost?
A: The cost will vary depending on the case. Possible expenses include attorney fees (which vary by law firm—it's best to consult a lawyer first), court fees (which depend on the size of the estate), general fees, and mediation costs. For more details, you can refer to the Judicial Yuan’s civil judgment cost estimator.