Dividing an estate: from the heirs’ inventory to partition, and what holds it up

A death occurs, and weeks or years later the question comes: how do we divide the estate? The answer is not a single decision but a sequence. Partition is the last link in a chain, and anyone who starts there before completing what precedes it is sent back to the beginning.

What follows sets out that sequence under the Personal Status Law, issued by Royal Decree No. (M/73) dated 6/8/1443H, and the Civil Transactions Law, issued by Royal Decree No. (M/191) dated 29/11/1444H, together with the features that take a partition out of the consensual route and into court.

The order of claims — with partition last

Article 197 of the Personal Status Law defines the estate as what a person leaves behind after death in the way of property and financial rights. Article 198 then sets an order that cannot be rearranged: preparation of the deceased for burial as is customary; payment of debts, with priority to any debt attaching to a specific asset of the estate; execution of the will; and partition of what remains among the heirs.

Debts come before the will, and the will before partition. And anyone who divides first does not escape a debt that surfaces later: article 630 of the Civil Transactions Law provides that where a debt of the deceased appears after the estate has been divided, each heir is liable for their share of that debt out of the portion that came to them.

A will is executed out of the estate after the funeral expenses and the debts have been met, under article 171. Its limit is in article 190: a will is executed if it does not exceed one third of the estate, and if it does, the excess is suspended pending the heirs’ ratification and is executed to the extent of the share of those who ratify it.

Who inherits and who is barred

Article 199 sets three conditions for entitlement to inherit: the death of the deceased, actual or by judicial ruling; the heir being alive after the death of the deceased, actually or presumptively; and the existence of a ground of inheritance with no impediment to it.

The impediments are prescribed, not left to discretion:

• Homicide: article 200 bars from inheritance anyone who killed the deceased intentionally and unlawfully or quasi-intentionally, whether as principal or accomplice, and anyone who caused or ordered such a killing. A person who killed the deceased by negligence inherits from the estate but not from the blood money.
• Separation of spouses during life bars mutual inheritance, except in the two cases in article 201: where the divorce was revocable, they inherit from each other while the woman is in her waiting period; and where the man divorced during a terminal illness without her asking for it, she inherits from him unless she remarries before his death.
• Difference of religion: no mutual inheritance, under article 202.
• Article 203: there is no mutual inheritance between persons who died at the same time, or where it is not known which of them died first.

Step one: the heirs’ inventory document

No partition and no transfer of title is begun before the heirs and their shares are fixed in an official document. The Ministry of Justice describes its issuance of an heirs’ inventory service as an electronic service enabling the beneficiary to obtain the heirs’ inventory document, containing the details of the deceased, the heirs and their shares.

The application is made through the Estates platform with a National Single Sign-On login, and covers the applicant’s details, the deceased’s details, the identification of the heirs, the heirs’ details, and the witnesses’ details.

The first practical bottleneck sits here: the witnesses. The application needs witnesses to the identification of the heirs, and assembling them takes longer than applicants expect, particularly where the heirs are spread across several cities. Preparing that item early shortens the whole cycle. An already issued document can be checked through the heirs’ inventory enquiry service.

Partition by agreement — and when that route closes

Where the heirs agree, the route is shorter. Article 626 of the Civil Transactions Law provides that if all co-owners agree on the partition it is valid even if it reduces the usefulness or the value of the property. Agreement permits what compulsion does not.

But notarising an agreed partition before the notary public is restricted. Article 11 of the Notarization Law, in the paragraph amended by Royal Decree No. (M/21) dated 26/1/1447H, gives him competence over the partition of jointly owned property, including real estate, only where there is no dispute over it, no endowment or bequest share in it, and no party lacking or limited in capacity or absent.

So four features take the partition out of his hands: a live dispute, an endowment or bequest share, an heir lacking or limited in capacity, or an absent heir. Article 12 of the same law, as amended, confirms that the notary public has no competence to notarise any acknowledgement or contract where a party lacks capacity or has limited capacity, is absent, or is the administrator of an endowment or a will, save in defined cases.

A hypothetical: an estate consists of one property, the heirs agree on dividing it, and one of them has not reached majority. The agreement exists, but the consensual route before the notary public is closed by that single feature, and the route is the competent court. Discovering this at the appointment itself costs the file months for no reason.

Judicial partition — and where it ends

Article 627 of the Civil Transactions Law allows anyone wishing to exit co-ownership to seek judicial partition, unless there is an agreement or a statutory provision preventing it, or the purpose for which the property was designated shows that it must remain permanently in common.

Where one co-owner seeks partition and the others refuse, article 628 marks out two paths: if the property can be divided in kind without rendering it unusable or causing a substantial loss of value, the court divides it; and if either consequence would follow from partition, the court orders the property sold at auction.

This is worth explaining to heirs at the outset: a property that cannot be split without disabling its use or substantially reducing its value ends in an auction sale with the price divided, not in physical division.

The same article contains an exception used by those who want to avoid the auction: where the party seeking partition can sell their share for no less than its value had the whole property been sold, the co-owners are not compelled to sell at auction; and where selling the share alone would reduce its value, the co-owners may avert the auction by paying the seller the amount of that reduction.

Creditors and partition

Article 629 allows the creditor of any co-owner to object to a partition being completed, or to the property being auctioned, without being joined — by intervening before the court in a judicial partition, or by notifying all co-owners of the objection in an agreed partition, in which case they must join the creditor or the partition is ineffective against them. In all cases a creditor whose right is registered must be joined before a judicial partition action is filed or an agreed partition concluded.

Once the partition is complete, a creditor who did not intervene cannot challenge it except in a case of fraud.

After partition — undervalue and third-party title

An agreed partition is not immune. Article 631 allows it to be set aside where a party to it proves that they suffered a substantial undervalue, and then imposes an express time limit: the action must be brought within the year following the partition. The other party may avert that by making up, in cash or in kind, what removes the undervalue.

And where all or part of what was divided is found to belong to someone else for a cause predating the partition, article 632 allows the affected party to claim indemnity from the remaining parties, each in proportion to their share, assessed at the value of the asset at the time of the partition.

Buying out an heir’s share

Article 243 of the Personal Status Law defines takharuj as an agreement under which an heir or a legatee gives up their share of the estate, or part of it, against a defined consideration from the estate or from elsewhere, and requires the agreement to be notarised before the competent body under the applicable procedures.

It is permitted where the estate is known to all parties to it, or unknown and incapable of being ascertained within what is normally a short period, with the court fixing that period by reference to the nature, location and extent of the property. Where the lack of knowledge could normally be resolved within a short period and the agreement was made before the parties knew, article 244 allows any party who was unaware of the position to seek annulment of the agreement.

So concluding such an agreement before the estate has been ascertained is not a short cut. It is a ground for annulling it later.

What actually holds a partition up

• No heirs’ inventory document, or one issued with incomplete details needing correction.
• Debts of the deceased never ascertained, since partition does not precede payment of debts in the order of claims.
• A will not executed, or exceeding one third with the question of the heirs’ ratification unresolved.
• An absent heir, or one lacking or limited in capacity, which removes the file from the consensual route.
• An endowment or bequest share in the jointly held property.
• A live dispute among the heirs, even over part of the estate.
• A property whose deed has not completed its Sharia and statutory procedures, since no transfer of title happens before that.

What to prepare

• The death certificate.
• Complete details of all heirs, and the details of the witnesses required for the heirs’ inventory.
• An inventory of the estate’s assets: properties and their deeds, accounts, vehicles, shareholdings, and financial rights owed to the deceased by others.
• An inventory of the debts owed by the deceased, marking any attaching to a specific asset.
• The will, if there is one, and a notarised copy of it.
• A statement of which heirs are absent or lack capacity, and what is needed for them.

In short

Dividing an estate is a sequence: burial expenses, then debts, then the will, then partition. Put the partition ahead of what precedes it and you leave the door open to being pursued afterwards.

The question to settle at the start of the file rather than the end: is any heir absent or lacking capacity? Is there an endowment or bequest share in the property? Is there a dispute? If the answer is yes to any of them, the route is the competent court from the outset, and there is no point attempting the consensual one.