A Co-Heir Is Blocking: What You Can Enforce in Law

Published on 06.11.2026

A Co-Heir Is Blocking

Short answer: If a co-heir blocks the community of heirs (Erbengemeinschaft), what you can do depends on the measure: take necessary preservation measures alone (§ 2038 (1) sentence 2 BGB), decide on measures of proper administration by the majority of the shares (§ 2038 (2), § 745 (1) BGB), sue for consent to such measures (§ 894 ZPO), enforce the partition by suing for consent to a partition plan, apply for a forced sale for partition (Teilungsversteigerung) in the case of land, or sell your own share of the estate (§ 2033 BGB). Silence or refusal does not replace consent, but does not permanently stop the other co-heirs.

When a co-heir in a community of heirs does not respond, rejects every solution or delays decisions, the others do not have to accept this in law, but it is not immediately a matter for the court either. Which resolutions the majority can pass, when you sue for consent and how the partition can be enforced depends on the blocked measure. Special rules apply to unknown, untraceable or legally incapacitated co-heirs. The legal position is as of October 2026.

First Clarify: What Exactly Is Being Blocked?

Who is a co-heir at all, and with what share, follows from the will or from statutory succession; on children and compulsory portions see Compulsory Portion and Children’s Inheritance. The right reaction depends on which measure is blocked. The statute distinguishes four levels:

← Tabelle nach links wischen, um weitere Spalten zu sehen

A substantial alteration of the jointly held object cannot be decided or demanded by majority (§ 745 (3) BGB). The share of the estate as such, by contrast, belongs to each co-heir alone; they can sell it without the consent of the others (§ 2033 (1) BGB).

For practice this means: anyone who alleges a blockade should first check whether the planned measure is administration or disposition. A sale of the house generally needs the cooperation of all. Only exceptionally can it itself be proper administration, if special circumstances make it necessary from the viewpoint of an economically minded assessor (BGH, judgment of 28 September 2005, ref. IV ZR 82/04, BGHZ 164, 181 = NJW 2006, 439). A letting or a maintenance contract, by contrast, can be decided by majority. The heirs can also decide by majority to terminate a tenancy of an estate asset if this corresponds to proper administration (BGH, judgment of 11 November 2009, ref. XII ZR 210/05, BGHZ 183, 131 = NJW 2010, 765).

Step 1: Document, Set a Deadline, Demand Cooperation

As a first step you should demand cooperation in writing. This creates evidence for everything that follows. What has proved its worth:

1. Describe the planned measure concretely, including offer, costs and timetable.
2. Set a reasonable deadline for a reply and name the consequence, such as a lawsuit or a majority resolution.
3. Deliver in a provable way, for example by registered mail or by messenger, with a copy of the documents.
4. Record replies, refusals and reasons.

Legally, each co-heir is obliged towards the others to cooperate in measures required for proper administration (§ 2038 (1) sentence 2 half-sentence 1 BGB). Silence is not consent, but can be a breach of duty. Anyone who breaches such a duty and thereby causes damage must expect claims for compensation from the other co-heirs; whether and in what amount is to be examined in the individual case. What becomes relevant under criminal law is not mere inaction but actively diverting estate assets.

Step 2: Majority Resolution in Administration

For proper administration the majority can decide (§ 2038 (2) in conjunction with § 745 (1) BGB). The majority of votes depends on the size of the shares, not on the number of heads. This helps when a co-heir with a small share blocks. Anyone in the minority must abide by the resolution; if they did not cooperate, that does not harm the validity of the resolution.

Two limits are important:

• The resolution must correspond to the nature of the object, that is, actually be proper administration. A sale of the house does not as a rule become administration merely because the majority decides on it.
• The individual co-heir’s right to the benefits in proportion to their share cannot be impaired without their consent (§ 745 (3) sentence 2 BGB).

If a co-heir uses an estate property alone, any participant can, unless the use is regulated by agreement or resolution, demand administration and use that corresponds to the interest of all at fair discretion (§ 745 (2) BGB). A claim for compensation for use thus comes into consideration, as a rule only once a new regulation of use has been demanded; the details depend on the case. Income such as rent is divided only at the partition, unless the partition is excluded for more than one year; then each co-heir can demand division of the net income at the end of the year (§ 2038 (2) sentences 2 and 3 BGB).

Step 3: Suing for Consent

If a co-heir refuses the required cooperation although the measure corresponds to proper administration, they can be sued for consent. If the defendant is sentenced to make a declaration of intent, it is deemed made when the judgment becomes final (§ 894 ZPO). The judgment thus replaces the missing signature, for example under a lease or an order to a tradesman. The prerequisite is that the measure actually belongs to proper administration and that the claimant describes it with sufficient precision.

Effort and costs: for the first instance a court fee of 3.0 according to the amount in dispute arises (no. 1210 KV GKG); lawyers’ costs under the Lawyers’ Remuneration Act are added. Anyone who merely has differences of opinion on whether to sell gets no further with an action for consent to administration: the sale is regularly not a mere administration measure, so the way usually leads through the partition; an exception comes into consideration only in special circumstances.

Step 4: Enforcing the Partition

Each co-heir can demand the partition at any time (§ 2042 (1) BGB). The claim is not subject to limitation (§ 758 BGB, applicable via § 2042 (2) BGB). Exceptions are a prohibition of partition by the deceased, which in principle becomes ineffective after 30 years (§ 2044 BGB), the postponement because of undetermined shares (§ 2043 BGB) and, at the request of a co-heir, postponement until the end of a public notice procedure (§ 2045 BGB). There are several ways to enforce it.

Notarial mediation. Each co-heir can apply for mediation of the partition by a notary (§ 363 (1) and (2) FamFG). The procedure is helpful if a co-heir merely does not respond: if they do not appear, the content of the agreement is communicated to them and a deadline is set to apply for a new date; if they do not apply or do not appear there, their consent is assumed and the notary confirms the agreement (§ 366 (3) and (4), § 368 (2) FamFG). The confirmed partition takes effect when it becomes final and is enforceable (§ 371 FamFG). In a genuine dispute, by contrast, the procedure is suspended (§ 370 FamFG), and undisputed points can be recorded. If there is an executor entitled to carry out the partition, the application is excluded (§ 363 (1) FamFG). An objection by a co-heir does not end the procedure; disputed points lead to suspension (§ 370 FamFG), non-appearance to the fiction under § 366 (3) FamFG.

Action for consent to a partition plan. If agreement fails, the co-heir can sue the others for consent to a plan they have submitted. The court decides only on this plan; it must comply with the statutory rules (§ 2042 (2) in conjunction with § 749 (2) and (3), §§ 750 to 758 BGB). A prerequisite is readiness for partition: estate liabilities are settled or retained (§ 2046 (1) BGB), the estate is, as far as necessary, converted into money (§ 2046 (3) BGB), and the shares of the estate are established. An incomplete plan can lead to dismissal of the action. When the judgment becomes final, consent is deemed given (§ 894 ZPO).

Forced sale for partition (Teilungsversteigerung). If land belongs to the estate, each co-heir can apply for its compulsory auction to end the community, without a title (§ 753 (1) BGB, § 180 (1), § 181 (1) ZVG). The application alone changes the negotiating position, but involves risks for all participants: the procedure follows its own deadlines, and the proceeds can be below the private-sale value. The procedure is presented on a page of its own.

Sale of your own share of the estate. Anyone who no longer wants to wait for cooperation sells their entire share of the estate; the contract needs notarial form (§ 2033 (1), § 2371 BGB). On a sale to third parties, the co-heirs can exercise a right of pre-emption within two months (§ 2034 BGB). If the seller is married and lives under the statutory marital property regime, § 1365 BGB can require the spouse’s consent if the share of the estate essentially makes up the whole of their assets. The quick exit has its price: a buyer will factor in a discount, the amount of which cannot be seriously quantified without a concrete offer.

Special Cases of Blockade

The co-heir does not report or is unknown. If an heir is unknown, the probate court must see to the securing of the estate as far as there is a need, and can appoint an estate administrator (Nachlasspfleger) (§ 1960 (1) sentence 2, (2) BGB). An estate administrator is also to be appointed if an entitled person applies for this in order to assert a claim against the estate in court (§ 1961 BGB). For a known but untraceable co-heir, an absentee guardianship (Abwesenheitspflegschaft) comes into consideration (§ 1884 BGB); the court decides whether the conditions are met. This is also important for notarial mediation, because summons there cannot be served by public notice (§ 365 (1) FamFG). With a foreign connection, the articles on Estate Administration with a Foreign Connection and on Tracing Heirs with a Foreign Connection help with classification.

The co-heir is a minor or under legal guardianship. Here, approvals by the family court or the guardianship court must be examined. For parents, § 1643 BGB determines in which cases the approval of the family court is needed; a partition contract and an agreement by which the child leaves a community of heirs need no approval under § 1643 (3) sentence 2 BGB. For individual legal transactions such as the sale of a property, it must nevertheless be examined separately whether approval is required. It is different with a guardian (Betreuer): they need the approval of the guardianship court for a partition contract and for leaving the community of heirs (§ 1851 nos. 1 and 3 BGB). For a disposition of the share of the estate, court approval is required both for the guardian and for the parents (§ 1851 no. 3, § 1643 (1) BGB).

There is an executor. In that case the blockade has often arisen where the executor remains inactive. The executor must bring about the partition and hear the heirs on the plan (§ 2204 BGB). For good cause, in particular gross breach of duty, the probate court can dismiss the executor on the application of a participant (§ 2227 BGB).

Dispute over succession or will. If there is a dispute over who is a co-heir or how the will is to be interpreted, the partition is not ready. First the succession and the shares must be clarified. With a foreign connection, in addition the applicable succession law; see the articles on German Inheritance Law When Living Abroad and on Contesting a Will with a Foreign Connection. Within the EU, the EuErbVO regularly links to habitual residence at the time of death (Art. 21 (1) EuErbVO), with the exception where there is a manifestly closer connection (Art. 21 (2) EuErbVO) and the possibility of a choice of law (Art. 22 EuErbVO); Denmark and Ireland do not apply it and are treated like third states from a German perspective. If the blocking co-heir lives abroad, service takes longer; for the details a foreign adviser must be consulted.

Mediation and arbitration. Not every blockade has to end in court. Mediation can help if personal conflicts lie behind the refusal; it presupposes that all co-heirs take part voluntarily. The deceased can order in the will that disputes among the heirs are decided by an arbitral tribunal (§ 1066 ZPO). For compulsory portion claims, according to case law, such a unilateral order does not apply (BGH, decision of 16 March 2017, I ZB 50/16, NJW 2017, 2115). Without such an order, the co-heirs can agree on arbitration only jointly.

Time Limits and Costs at a Glance

← Tabelle nach links wischen, um weitere Spalten zu sehen

Typical Mistakes in a Blockade

1. Acting unilaterally. A co-heir who alone sells an estate asset acts without power of disposal (§ 2040 (1) BGB). Only what is necessary for preservation is permitted.
2. Escalating without evidence. Missing documentation of the request and the deadlines later weakens the lawsuit.
3. Choosing the wrong action. Anyone who sues for consent to a sale instead of presenting a complete partition plan often fails because of lack of readiness for partition.
4. Overlooking taxes. A sale of the estate property can be a private disposal transaction if the deceased acquired it less than ten years earlier (§ 23 (1) sentence 1 no. 1 EStG); where in doubt, a binding ruling (verbindliche Auskunft) from the tax office under § 89 (2) AO helps (fee under § 89 (3) to (7) AO).
5. Waiting too long. The estate often loses value through lack of care, and other claims among the heirs become time-barred after only three years.

Example (fictitious): Anna, Ben and Clara each inherit a third of an apartment building. Clara answers no enquiry; the roof is leaking. Anna and Ben commission the emergency repair as a necessary preservation measure and decide, with two thirds of the shares, to engage a roofer; Clara is informed in writing. For the desired sale they set her a deadline and then apply for notarial mediation. If Clara stays away and does not object, her consent is deemed assumed after the procedure; if she objects to the plan, it is suspended, and Anna and Ben consider a lawsuit or a forced sale for partition.

Conclusion

A blocking co-heir can delay the community of heirs but not paralyse it permanently. Each co-heir may take necessary measures alone, the majority can decide on proper administration, and consent can be sued for. For the distribution of the estate, notarial mediation, the action for consent to a partition plan, the forced sale for partition and the sale of a share of the estate are available. Anyone who documents systematically and chooses the right level avoids the most common mistakes. For provision so that a blockade does not arise in the first place, see the notes on estate planning.

Frequently Asked Questions

Can a single co-heir prevent the sale of the inherited house?

Yes, at first: the co-heirs can in principle dispose of the house only jointly (§ 2040 (1) BGB); an exception comes into consideration only if the sale is itself proper administration because of special circumstances. The blockade need not remain permanent, however, because each co-heir can demand the partition (§ 2042 BGB) and, for land, apply for the forced sale for partition. Alternatively a co-heir can sell their share of the estate (§ 2033 BGB).

What should I do if a co-heir does not answer?

Document your enquiries, set a deadline in writing and name the consequences. You can take necessary measures alone and decide on administration measures by majority, and for the partition notarial mediation comes into consideration, in which non-appearance can lead to the fiction of consent (§ 366 (3) FamFG).

Can I force a co-heir to consent?

For measures of proper administration, yes: they are obliged to cooperate (§ 2038 (1) sentence 2 BGB), and the final judgment replaces their declaration (§ 894 ZPO). They can be forced to a sale in this way only exceptionally, if the sale is itself proper administration because of special circumstances; regularly the way leads through the partition.

How long can a community of heirs remain blocked?

There is no statutory maximum duration; the claim to partition is not time-barred (§ 758 BGB). Only a prohibition of partition by the deceased has effect in principle for at most 30 years (§ 2044 (2) BGB). In this time, however, the estate can lose value, and other claims among the heirs become time-barred.

Must I observe anything different if a co-heir lives abroad?

Yes. First it must be clarified which succession law applies (Art. 21, 22 EuErbVO); if German law applies, the partition is governed by §§ 2042 et seq. BGB. Service abroad takes longer, and register questions on the spot are assessed by a foreign adviser.

Attorney Dr. Johannes Fiala and the law firm, with a focus on international inheritance law, tax law and asset protection in Munich, advise co-heirs on blockades in the community of heirs, from the review of the legal position through setting deadlines and notarial mediation to the lawsuit. Dr. Fiala has published extensively on questions of emigration and asset protection. Contact the firm without obligation to discuss your individual situation in an initial consultation.