Undivided inheritances: what they are, what problems they cause, and how to resolve them legally

In Portugal, it is very common for a person's assets to remain undivided for some time after their death, meaning, without formal division among the heirs.

This is called undivided inheritance. Although this situation is frequent and legally foreseen, it can generate serious conflicts, asset freezes and problems in the management of inherited assets.

In this article, we clearly explain what undivided inheritances are, why they are formed, the most common problems they cause, and how they can be resolved legally, safely, and with the support of a lawyer.

Indivisible inheritances are properties or assets that cannot be physically divided among the heirs. This often includes real estate, businesses, or valuable items where splitting them would reduce their value or functionality.

The expression unpartitioned inheritances refers to a situation where the assets left by a deceased person are still were not shared among the heirs, remaining as a single asset, with all heirs being co-owners. https://www.dicio.com.br/coproprietario/of the total inheritance, regardless of the number of assets or the value corresponding to their inheritance share.

According to the Article 2091 of the Portuguese Civil Code, The estate's assets are jointly administered until the division is carried out. At this stage, no heir has exclusive rights to a specific asset. All have proportional rights over the entire estate.

The division can drag on for years or even decades, due to a lack of understanding between heirs, disinterest, or a lack of documentation. However, the longer an inheritance remains undivided, the risks and potential conflicts are greater.

An undivided inheritance is formed when a deceased person leaves behind assets, such as property, money, or investments, and the legal heirs have not yet formally divided these assets among themselves. This typically happens after a death has occurred, and the process of assessing the estate and distributing it has begun but not yet concluded. The assets remain in a collective state, owned jointly by all the heirs, until a legal division or partition takes place.

The undivided inheritance is formed at the moment of a person's death and continues until it is divided, whether by public deed, by probate, or by judicial decision.

During this period:

• The inherited assets are considered common to all heirs.

• No heir may alienate or alter property without the consent of the others

• The management of the inheritance falls to the executor, who represents all the heirs.

The indivision is, therefore, a transitional phase but with serious legal implications, especially when it involves real estate, bank accounts, family businesses, or the deceased's debts.

Heranças indivisas podem causar vários problemas, incluindo: * **Disputas familiares:** Quando propriedades ou bens não são divididos uniformemente entre os herdeiros, podem surgir conflitos e desentendimentos. * **Dificuldade em vender ou gerir os bens:** Se os bens estão em nome de vários herdeiros, pode ser difícil tomar decisões sobre a venda, aluguer ou manutenção sem o consentimento de todos. * **Problemas legais e financeiros:** A falta de clareza sobre a posse e os direitos pode levar a disputas legais e dificuldades em obter financiamento ou vender os bens no futuro. * **Atrasos no processo de herança:** A partilha de bens indivisos pode atrasar significativamente a conclusão do processo de inventário e a distribuição dos bens aos herdeiros. * **Impostos e custos adicionais:** A gestão de bens indivisos pode implicar custos adicionais, como taxas de manutenção, impostos sobre a propriedade ou custos legais para resolver disputas.

Although legal, the prolonged maintenance of undivided estates it brings several disadvantages and can compromise the use, conservation, and value of inherited assets. Here are the most common problems:

1. Disputes between heirs

It is one of the most frequent consequences. When heirs cannot agree on what to do with the assets, family tensions arise that drag on for years. Disagreement can focus on:

• • Who gets a certain asset

  • How to manage an inherited property or business

  • Who pays taxes or maintenance costs

  • Whether the goods should be sold or retained

2. Difficulty in using or selling goods

Being all co-owners, No heir can freely dispose of an undivided asset., such as selling a house, leasing land, or withdrawing money from a bank account. All require unanimous agreement or court authorisation, which complicates the practical management of the estate.

3. Deterioration of assets and loss of value

Many inherited properties are left to fall into disrepair, without maintenance, because the heirs cannot agree on who should pay the expenses or make decisions. This leads to Decline in asset value, legal problems with local authorities and even security risks.

4. Tax and legal obligations

Undivided inheritances continue to generate charges: payment of IMI, maintenance of insurance, account management, filing tax returns. If the heirs do not cooperate, debts, fines, and liabilities will accumulate.

5. Judicial litigation

Ultimately, many cases of undivided inheritances end up in court. This represents time, cost, and emotional strain for everyone involved.

How to legally resolve an undivided inheritance.

Fortunately, Portuguese legislation offers several Legal ways to resolve an undivided inheritance and proceed to the division of assets. Each case must be analysed individually, but the main solutions are:

1. Mutual agreement share

When all the heirs are in agreement, the division can be made by public deed, at a notary's office, with or without a lawyer present. This is the quickest, most economical and most peaceful way to resolve undivided inheritances.

The deed of partition must include:

• • Identification of heirs

  • List of assets and their values

  • How they will be divided

  • Payment of taxes (specifically Stamp Duty)

2. Notarial inventory

probatório. inventory next to Inheritance desk at notarial offices. The inventory identifies the assets, the heirs, and judicially defines the division.

This process may be more time-consuming, but it is essential for resolving legal impasses, validating wills, or distributing assets proportionally to each heir's share.

Judicial sharing

When the conflict between heirs is serious and no consensus is possible, the solution lies in the judicial route. A division process is initiated in court and conducted by a judge, who will decide based on the evidence and arguments presented by each party.

In these cases, The support of a lawyer is mandatory, being the one who represents the heir in court and ensures that their rights are respected.

The role of the solicitor in resolving undivided inheritances

A lawyer's role is indispensable in practically all stages of an undivided inheritance. The lawyer's functions include:

• Clarification of heirs' rights and obligations

• To mediate dialogue between parties and attempt to avoid litigation

• To draw up formally valid sharing agreements

• Represent a client in judicial inventory or inheritance proceedings

• Analyse the feasibility of selling, leasing, or retaining certain assets

• Verify situations of concealment of assets or improper use by other heirs

The presence of a solicitor ensures that the division proceeds legally, securely and fairly, particularly in cases involving property, businesses, debts or contested wills.

How to prevent an inheritance from remaining undivided for too long?

To avoid the negative consequences of undivided inheritances, it is important to act early and with legal guidance. Some good practices include:

• Initiate the granting of heirs as soon as possible

• Gather all documentation relating to assets and debts

• Consult a solicitor before making any decisions regarding assets.

• Promote dialogue between heirs and seek consensus

• Formalise the division as soon as there is agreement, even if partial

Conclusion

As unpartitioned inheritances they are a common reality, but that does not mean they should be prolonged indefinitely. The lack of sharing brings costs, conflicts, and legal instability for all involved.

With the support of a solicitor and knowledge of the applicable legislation, it is possible to efficiently resolve undivided inheritances, protect the value of assets and preserve family relationships.

If you are involved in an undivided inheritance, the first step is to inform yourself, seek legal advice, and proceed with the division. The sooner you do so, the lower the risk of conflict and the greater the fairness in the distribution of the estate.