Indivision

What is meant by indivision?

If there are several heirs an estate is said to be in indivision until it is distributed (le partage des biens).

Le partage is a legal act by which this situation is ended and each heir receives ownership of their individual share. This may be resolved either amicably or judicially.

The indivision remains if property continues to be jointly owned by the heirs, or between the heirs and a surviving spouse.

Each heir has a fraction (quote-part) of the asset, according to their rights.

Assets in indivision are managed jointly by the heirs or by a mandataire (proxy) nominated by the deceased, the heirs or a judge. A judge may rule that the estate remains in indivision for up to five years (for example, to protect a surviving spouse).

Subject to that limitation, nobody can be required to remain in an indivision.

Any co-owner can request a sharing out (if necessary by a sale), as can a creditor, but where it is not possible to agree amicably among the heirs it sometimes necessitates an application to a court.

The law allows an heir to a share in a home to declare before a notaire his or her wish to arrange a partage (sharing out).

The co-owners have three months to react and, if they fail to do so, the notaire makes a record of their silence or opposition.

He or she then applies to the local court (tribunal judiciaire) to authorise the sale, unless it considers this will cause excessive prejudice to the rights of the other co-owners. If the court authorises it, the sale takes place and the money is shared among co-owners after any debts relating to the property are paid.

Sharing out has to be done by a notaire’s deed if real estate is involved, and there are fees for arranging this (see box on previous page). In other cases it can be done sous seing privé (by a private, signed agreement). In certain kinds of partage a tax called droit de partage at 2.5% of the property value is also payable.

To share out the estate it has to be divided into as many 'lots' as required (if this is not possible heirs can make up value to other heirs with balancing payments called soulte) and, if this is impossible, it is sold at auction.

Anyone who lived with the deceased can ask for the home to be attributed to them as a priority; this also applies to business premises necessary for their work.

Note that it is possible for someone to claim their right to a share in a succession for up to 10 years from the date of death.

Apposition de scellés

If heirs, a spouse or creditors are concerned about some of the deceased's valuables 'going missing' they can apply to the tribunal de grande instance to have a seal placed on the home. A huissier will take an inventory before doing this.

The seal is broken later in the presence of the heirs – or their representatives – and the inventory is checked unless the heirs waive their wish for this.