Community of heirs and clearance: who decides, who pays

The flat must be handed over at the end of the month. Three siblings inherit it. Two agree, but the third does not respond or has different ideas. This is the most common reason why clearance dates are missed.

On death, a community of heirs (Erbengemeinschaft) is formed. The estate belongs to all heirs jointly. Disposing of estate assets requires every heir’s consent. There are no majority decisions.

What “jointly” means in practice

A clearance is a disposal of estate assets: anything discarded is gone, while anything sold is converted into money. This requires unanimity.

A distinction must be made for urgent administrative actions, which any heir may take alone because delay would cause damage: arranging repairs for water damage, securing the flat or interrupting an impending limitation period. The threshold is strict. “The rent is still running” is usually not enough to justify arranging a clearance alone.

A reputable clearance company will require the written consent of all heirs or a document proving that one person has sole authority to represent them. We use a one-page clearance authorisation signed by all heirs. Where an executor (Willensvollstrecker) is in place, the executor’s certificate (Willensvollstreckerzeugnis) is sufficient.

A company that does not require this protection risks an heir who was left out later claiming compensation for discarded items. This affects both the company and the heir who gave the instruction.

Option 1: Reach a structured agreement

Most deadlocks are communication problems. The following steps help:

Make an inventory before the clearance. Prepare a list of what is there before anything is removed. Photographs are sufficient for household contents. Items that may be valuable need a valuation. Much of the mistrust within communities of heirs stems from concern that someone will take something before the others have seen it.

Arrange a selection session. All heirs walk through the flat together once and mark what they would like to keep. If more than one heir chooses the same item, it is allocated by drawing lots or by crediting its estimated value against that heir’s share. The remainder is then released for clearance.

Set a realistic deadline. Work backwards from the flat’s handover date when planning the clearance. If the flat is handed over on the 31st, the 24th is the last practical clearance date. This date is not negotiable. Stating it speeds up decisions more than any argument.

Record decisions in writing. An email to everyone saying, “This is how we will proceed; raise any objections by Friday” does not constitute legal consent, but it creates a clear commitment.

Option 2: Estate representative

If no agreement can be reached, any heir may ask the competent authority to appoint an estate representative (Erbenvertreter). The authority appoints a neutral person, often a lawyer, notary or fiduciary, to administer the estate until it is divided.

The estate representative may carry out administrative actions alone and may also commission a clearance. This resolves the deadlock without anyone having to give way.

Advantages:

• Action can resume immediately
• Neutrality eases relations among the heirs
• Deadlines can be met

Disadvantages:

• Costs are charged to the estate
• Loss of control because the representative decides in place of the heirs
• The appointment takes several weeks

While a tenancy notice period is running, an estate representative is often less expensive than the additional months’ rent caused by an unresolved deadlock. Calculate the costs before treating estate representation as a last resort.

If an heir is absent or their whereabouts are unknown, the authority will order representation. Notify the authority of the situation.

Option 3: Executor administration

If the deceased appointed an executor (Willensvollstrecker) in their will, this simplifies the clearance. The executor administers the estate and has the right and duty to safeguard it until distribution. The executor may issue clearance instructions alone, enter into contracts and pay invoices from the estate.

The heirs cannot give the executor instructions. They are entitled to information and may lodge a complaint about the executor with the supervisory authority. They do not decide on the clearance.

For clearance companies, the executor’s certificate provides the clearest basis for accepting an instruction. We require it as standard when an executor is in place.

Who pays for the clearance

Clearance costs are estate debts. They are paid from the estate before distribution. If the estate’s assets are insufficient, the heirs who accepted the inheritance are jointly, severally and without limit liable.

This has two practical consequences:

An advance payment is often required. If the accounts are frozen or the assets are not liquid, someone must pay in advance. That person has a claim against the estate, but only if they can show that the expense was necessary for the estate. Keep the quotation, instruction and invoice, and obtain the other heirs’ written consent.

A value credit reduces the burden for everyone. If saleable estate items are credited against the clearance costs, the amount that the community of heirs must provide is reduced. It is important that each such credit and its estimated value are listed separately in the quotation. A vague discount is not sufficient. This is the only way for the other heirs to understand it and for it to be evidenced in the event of a dispute.

→ How a value credit works

If an heir disclaims the inheritance

If one heir disclaims the inheritance, their share passes to the others. The remaining heirs then decide among themselves. The community becomes smaller and remains able to act.

If everyone disclaims, the estate is liquidated in bankruptcy by the bankruptcy office (Konkursamt). The bankruptcy office then arranges and pays for the clearance. The heirs are no longer involved.

Checklist before the clearance date

• Is there a certificate of inheritance (Erbbescheinigung) or an executor’s certificate?
• Has the deadline for disclaiming the inheritance passed for every heir?
• Have all heirs signed the clearance authorisation, or is there authority for one person to act alone?
• Has the selection session been completed and documented?
• Are excluded items marked and listed in the quotation?
• Has it been agreed who will pay the invoice and how it will be accounted for in the estate?
• Has the handover date been set, and is there enough time between the clearance and the flat handover?

Completing these seven checks before the appointment avoids discussions on the clearance day and a second visit.