How to divide the estate between siblings

How to divide the estate between siblings

Even if there is a will, the descendants are always entitled to a share in the testator’s estate (the so-called “unavailable share”).

The children’s share of the estate is, however, also calculated taking into account what they received by way of a gift while the parent was still alive. Thus, it could happen that a father, on his death, leaves his only house to one son because he had gifted the other, well before his death, a substantial sum of money.

If a person dies without making a will and leaves his spouse with the children, his estate (assets and debts) is divided as follows

  • If there is only one child with the surviving spouse (i.e. the other surviving parent): half of the estate goes to the surviving spouse and the other half to the child;
  • If there are two or more children with the surviving spouse: one third of the inheritance goes to the surviving spouse and the other two thirds are divided, in equal shares, between the siblings. For example, if there are two brothers, each will be entitled to one-third of the inheritance;
  • If there are several children without the other parent (i.e. the surviving spouse): the entire inheritance is divided among all the children in equal shares.

If the parent has left a will, his or her last will is executed. As mentioned, however, the will cannot take away from the children the minimum share of the inheritance that they are entitled to by law.

Here, then, is what this mandatory share is:

  • If there is only one child with the surviving spouse: one third of the estate goes to the spouse and the other third to the child. The rest of the estate forms part of the ‘disposable share’ and can be allocated by the testator to whomever he wishes;
  • Where there are two or more children with a surviving spouse: one quarter of the estate goes to the surviving spouse and one half is divided among the children in equal shares. The remaining quarter of the inheritance is part of the freely disposable share;
  • Where there is an only child without a surviving spouse: half of the estate goes to the surviving spouse;
  • Where there are two or more children without a surviving spouse: they are entitled to two-thirds of the estate to be divided in equal shares.
More complicated is the division of real estate for which there is often friction between those who would like to get rid of it and those who would like to keep it. If the parties cannot reach an agreement, each heir may apply to the court to initiate a judgment of division of the estate. In fact, prior to the division, each heir has only an ideal share of the total estate and not a material part thereof. The division judgment thus aims to identify the share with a specific section of the estate. But this is not always possible.
 
In case you need assistance in the separation of the assets of an inheritance or if you wish to contest a probate please contact info@vgslawyers.com