Division of Inherited Property
Division of inherited property is the process of dividing the estate, which becomes the joint property of the co-heirs upon the commencement of inheritance, into each heir's individual property.
All co-heirs must take part in the division of inherited property.
What Is Division of Inherited Property?
Division of inherited property means dividing the estate among two or more heirs according to each heir's inheritance share.
Inheritance is the comprehensive succession of the deceased's estate to the heirs at the moment of death. Where there are several heirs, the estate becomes their jointly owned property.
Absent special circumstances, the heirs simply consult with one another and divide the estate smoothly according to their respective shares.
Persons Disqualified from Inheritance
In the division of inherited property, the following persons are disqualified as heirs. They neither succeed to the estate nor have any right to demand its division.
- A person who intentionally killed, or attempted to kill, the deceased, a co-heir of the same rank, or a family member
- A person who intentionally inflicted bodily injury resulting in the death of the deceased, a co-heir of the same rank, or a family member
- A person who, by fraud or duress, prevented the deceased from making or revoking a will concerning the inheritance
- A person who, by fraud or duress, caused the deceased to make a will concerning the inheritance
- A person who forged, altered, destroyed, or concealed a will concerning the inheritance
Requirements for Division of Inherited Property
To divide inherited property, certain requirements must be met.
- All co-heirs must take part in the division.
- There must be no prohibition on division. The deceased may prohibit division of the estate by will, but for no longer than five years.
- The heirs must be identified, and the property subject to division must be specified. Any contributory portion is excluded from the estate to be divided.
Methods of Dividing Inherited Property
The method of division is decided in light of the kind and nature of the property and rights making up the estate, together with all other circumstances. Division in kind is not mandatory;
division by payment of value or division of sale proceeds is equally permissible. If the deceased left no will, or the co-heirs cannot reach an agreement on division,
a petition for division of inherited property may be filed with the Family Court.
- Division in kind: the estate is divided among the heirs as it stands
- Division of sale proceeds: the estate is sold and the proceeds are divided among the heirs
- Division by payment of value: one heir buys out the other heirs' shares, pays them their value, and becomes the sole owner
Litigation over Division of Inherited Property
If the co-heirs cannot reach an agreement on the division of inherited property, a petition for division may be filed with the competent Family Court.
- The petition is filed by one or more heirs against all of the remaining heirs.
- A petition for division of inherited property may be filed at any time; there is no filing deadline.
- These cases are subject to the mediation-first principle, so mediation must be attempted before the case proceeds to adjudication.
Effect of Division of Inherited Property
The division of inherited property takes effect retroactively to the commencement of inheritance: each heir is deemed to have owned his or her share from the moment the inheritance began.
In practice, however, legal complications frequently arise after the division.
In any inheritance dispute, understanding the flow of the estate's assets is the single most important thing. It is therefore advisable to obtain the assistance of an experienced attorney in advance, whether to draw up a written agreement on the division of inherited property,
to file a petition for division, or to be fully prepared for the process of responding to one.
