It is made out of court or in court, the division of the estate involves the determination of the lots and the liquidation of the estate. The liquidation of the estate is to pay liabilities of the assets to be converted into all cash or part of these elements so that sharing can be made. The objective is to ensure equality between the various heirs.
Equality in sharing
When sharing, amicable or judicial, each heir must receive property with a value equal to that of his rights.
In the settlement, the allocation is made by mutual agreement.
In front of the courts, it passes by a lot. It is then necessary to constitute of lots.
Batches consist of:
- Either by the heirs;
- Either by the notary appointed under the legal sharing.
In principle, it should be done as many lots as there are heirs.
If it is impossible to accommodate lots, the property is sold at auction and the proceeds of the sale shall be distributed among the heirs.
Good to know: lots of values can be unequal. In this case, compensation must be paid.
Allocation of lots under the sharing
As part of an amicable partition, lots are distributed according to the convenience of the heirs.
If it is a judicial share, the allocation is done by drawing lots or in front of the notary, before the judge.
Good to know: Some goods are excluded from sharing (family papers, decorations …). In case of dispute, the grant is made by the court.
Any heir may request preferential allotment:
- Of the property or the right to the lease of housing (and the furniture build it) if it comes to his residence at the time of the death;
- Ownership or leasehold of the premises for professional use (and the furniture it contains) for the exercise of its activity.
Good to know: within the framework of a shared enterprise, the surviving spouse or heir owner may request preferential allotment against payment of financial compensation (if necessary) when he was involved in its operation.
The liquidation statement is a report that:
- Describes the liquidation operations of the estate;
- Fixed the rights of everyone;
- Describes the lots.
In the context of sharing, notary establishes a statement of liquidation in the year of his appointment and shall inform the heirs.
Once approved by the heirs, the liquidating State (and its official report of agreement) is definitive mutual sharing. Then the judge finds the closure of the liquidation statement.
In case of dispute, the lawyer sends the judge a report containing the demands of the heirs and the draft statement of liquidation. Judicial sharing becomes final after approval by the court. The draw of lots may then take place.
The distribution of the estate produces a declarative: each heir is supposed to keep the deceased property directly in the batch he recovers.
Things happen as if the heir had been the sole owner of the property transferred to the sharing and never had ownership of the other effects of the estate. The period of joint ownership is somehow erased.
Good to know: The declaratory effect is used to ensure the equality between the co-heirs by putting them safe from consequences of the insolvency of the others.