Indivision and Licitation: How Does It Work?
The auction of the property of an estate is the sale by auction of this property, whether it is movable or immovable. This is done when there is indivision. The goods owned jointly by the heirs are sold in this way.
Let’s look at this procedure which allows settling a succession between “co-owners”.
Principles of the auction of the property of an estate
Licitation is possible:
- if the property owned in joint ownership cannot be divided conveniently and without loss;
- or there is a property that no co-partitioner is willing or able to take in a partition.
The auction price of the property is divided among the heirs who are joint owners of the property sold.
Management of the period of undivided ownership and recourse in case of conflict
Amicable sharing is possible if all the undivided co-heirs agree on the principle and terms of the distribution of the shares, in particular the valuation of the property comprising the estate. If one of the co-heirs objects, the others can always give him/her formal notice to join them or have a replacement designated. As a last resort, if there is no agreement between all the heirs, a judge may be asked to rule.
The presence of minor or unemancipated children does not prevent the amicable division, provided that the guardianship judge (the family court judge acts as guardianship judge for minors) or the family council is consulted.
The approval of the amicable partition is subject to the judge’s authorization only in the event of conflicting interests with the person responsible for the protection of the children’s property.
The mass that can be divided among the heirs is made up of all the property of the deceased existing on the day of his death, the “reported” donations (i.e. reintegrated into the estate) and the reduction indemnities due to the heirs when a gift or a legacy has been contested. The debts and claims of the co-sharers are then added. Each heir is supposed to receive property of a value equal to the value of his rights within the indivision. The value of this property is estimated on the date fixed by the partition deed.
Good to know: property bequeathed by will is not part of the partitionable mass.
The moment of the actual partition, of the constitution of the lots, is the most delicate and causes heavy tensions within the family. If it is impossible to achieve a perfectly equitable division, some heirs may feel less well treated.
The law then provides for two solutions:
- the sale of all or part of the estate, with the heirs sharing the proceeds in proportion to their respective rights;
- the constitution of lots of the same kind, as equal in value as possible, before proceeding to a drawing of lots (a delicate situation); if it is impossible to break down the estate into approximately equal lots, equality between the heirs must be re-established through a sum of money (the balancing payment), paid to the heirs who are less well off.
Questioning the auction process
If an heir discovers that his reserve share has been cut and reduced by at least 25%, he can apply to the court to have the partition annulled (provided he can prove that his agreement was obtained by force or trickery). A new partition may then be ordered unless a complementary partition is sufficient to compensate him for the prejudice suffered in the case of a complex operation.
Another case may lead to the questioning of the auction operations: that of the heir who was forgotten, voluntarily or not, during the estate settlement. He may then request either the cancellation of the partition or the allocation of the share of the inheritance to which he is entitled.
Suppose all the heirs agree to a judicial partition. In that case, they must send a joint application to the judicial court of the deceased’s domicile, specifying whether they prefer a partition in value (money) or in-kind (property). A single heir can request it. If only one of the heirs requests a partition, he must summon the others to the court, which will distribute the property among the heirs.
When the succession is simple, the judge proceeds with the division himself, and the heirs only have to go to a notary to have it registered.
When the succession is complicated, the court appoints a notary to draw up a liquidation statement and a judge to supervise the operations. Then, within a year (renewable for one year in case of difficulties), the notary must draw up the partition project: if it is acceptable to the heirs, the file is closed; if not, the judge takes it up and decides whether or not to approve the project.
Once all the heirs have accepted the auction, the lots are drawn by lot or distributed by mutual agreement.
Good to know: if an heir prevents the division, the others can ask the judge to designate a person (another heir or a third party) to represent him or her; this person will have to obtain the judge’s authorization to accept the distribution of the property. The existence of a minor or an adult under guardianship is another cause of blockage; in this case, the division can only be made with the agreement of the guardianship judge (it is the family court judge who acts as guardianship judge for minors) or the family council, and the appointment, by these same people, of a notary responsible for monitoring the operations.