Dividing an inheritance: agreement, notary or court

Most often a person comes with this question after the inheritance has already been opened: there are documents for the flat, the car or the account, but there is no clarity among the relatives as to who gets what. Some want to receive their share in money, others want to keep the property for themselves, and still others do not understand at all what is considered jointly acquired with a spouse. Without formalising the shares, no one will be able to dispose of the property, so it is important to understand the procedure as early as possible.

From this article you will learn how an inheritance is divided by law, what heirs of the first order can count on, how the share of the surviving spouse is taken into account, how a division agreement differs from notarial formalisation, and when the matter can only be resolved through the court. We will separately look at the form and content of the agreement, compensation for unequal shares, and registration of rights to the property received.

Division of an inheritance between heirs: where to start and what it actually is

The division of an inheritance is an agreement among the heirs as to who gets what from the estate. It does not replace the formalisation of inheritance rights: first the heirs confirm their status, then they agree on the distribution of the property. Without an agreement, the common property remains common, and each co-owner may use it only within the limits of their share.

While the property is in common shared ownership, it cannot be fully disposed of: a house or a car can only be sold with the consent of the others. That is why the division is most often formalised immediately after obtaining the certificate of the right to inheritance. If there are several heirs and the items are indivisible, the shares are balanced out: one receives the flat, another receives monetary compensation or other property.

• Check the composition of the estate and the list of heirs
• Determine which items can be divided in kind and which only through compensation
• Agree on the distribution of shares among all the heirs
• Record the arrangement in a notarial agreement or prepare a claim
• Register the rights to the items received after the division

Division of an inheritance by law: who can count on what

In inheritance by law, the circle of persons is determined by order of priority under the Civil Code of the Republic of Kazakhstan. Heirs of the same order receive the property in equal shares, unless otherwise provided by an agreement between them. The shares in the division of an inheritance by law depend on the composition of the order and the number of heirs.

Heirs of subsequent orders are called if the previous ones are absent, have renounced the inheritance or have not accepted it. The incapacitated dependants of the deceased inherit together with the order being called; their share is determined by law.

The shares of heirs by law are equal, but they can be redistributed by a notarised agreement of the heirs concluded after the opening of the inheritance. The agreement must not violate the rights of compulsory heirs and other persons protected by law.

• the circle of heirs is determined by order of priority under the Civil Code of the Republic of Kazakhstan;
• heirs of the same order inherit in equal shares;
• heirs of subsequent orders are called when the preceding ones are absent;
• incapacitated dependants inherit together with the order being called;
• shares may be changed by agreement of the heirs;
• the size of a share determines the scope of rights in the division of property.

The shares of heirs of the same order are equal unless otherwise established by agreement.

Division of the estate between heirs of the first order

Heirs of the first order by law are the deceased's spouse, children and parents. Without a will, the division is based on the presumption of equal shares. The spouse retains a share in the joint property acquired during the marriage, and the remaining part is distributed among the heirs of the order.

Equality of shares is not absolute. It is displaced where an heir is declared unworthy by a court decision, where someone renounces a share in favour of a specific person, where an heir dies without having accepted the inheritance and their share passes to their heirs. A separate ground is the compulsory share of the deceased's minor and incapacitated children, and of the deceased's incapacitated spouse and parents: it is allocated regardless of the will.

• An unworthy heir is removed from inheritance by a court and loses their share.
• The compulsory share of minor and incapacitated children, and of an incapacitated spouse and parents, is allocated regardless of any agreement.
• A division agreement is drawn up in writing by all heirs of the line.
• Rights to real estate are registered through the Legal Cadastre and the Public Service Centre.
• An indivisible item may pass to one heir with compensation paid to the others.
• A dispute over shares in the absence of an agreement is heard by a court.

Division of an estate between a spouse and children: how jointly acquired property is taken into account

The death of a spouse does not turn the couple's common property into an estate in its entirety. First, the surviving spouse's marital share is carved out of the jointly acquired property — it remains with them and does not form part of the estate. The estate is opened on the deceased's share, which is divided among the heirs of the first line: the spouse and the children. The calculation is done in two stages: allocation of the share, then division of what remains.

The marital share is by default one half of the jointly acquired property, unless a marriage contract provides otherwise. The deceased's personal property — acquired before marriage, received as a gift or by inheritance — does not form part of the common mass and is divided in its entirety.

• The marital share is allocated out of the jointly acquired property: by default this is one half, and a different size is set by a marriage contract.
• The deceased's personal property is separated from the common property: anything given to them, inherited by them or bought before marriage does not fall into the marital share.
• Only the deceased's share is included in the estate, not the couple's entire common property.
• The estate portion is distributed among the heirs of the first line — the spouse and the children — in equal shares.
• Account is taken of the fact that the surviving spouse receives both the marital share and an estate portion, so their total share is larger than each child's share.
• A check is made as to whether the marriage contract has changed the regime of common property: both the size of the allocation and the final shares depend on it.

Division of an estate by agreement between the heirs

Division of an estate by agreement between the heirs is a voluntary contract by which the heirs who have accepted the inheritance distribute the property by mutual consent. The document is drawn up in writing and signed by all participants. Notarisation is mandatory if the agreement concerns immovable property or other property whose rights are subject to state registration.

An agreement is possible only after the inheritance has been accepted and within the circle of heirs called to inherit. The parties may depart from equal shares: one receives housing, another receives money, a vehicle or shares in the charter capital. If there is a minor or a person declared legally incapable among the heirs, a legal representative must take part in signing and consent from the guardianship authority is required.

• The agreement is concluded between the heirs who have accepted the inheritance.
• The form is written, with notarisation where required.
• Shares may be redistributed, departing from equality.
• Participation of a legal representative is mandatory for minors and persons declared legally incapable.
• The text includes a description of the property, the procedure for transfer and the distribution of expenses.
• Monetary compensation may be provided for in the case of unequal shares.

The sooner the heirs record the shares in writing, the fewer grounds there are for dispute: oral arrangements on the division of an estate have no force.

Agreement on the Division of Inherited Property with Compensation: When the Shares Are Unequal

Heirs are entitled to conclude an agreement on the division of inherited property with compensation if the shares are recognised as equal, but one of them receives an indivisible item or a larger share in real estate than the others. This is permissible both in inheritance by will and by law, provided that all heirs have accepted the inheritance and there is no dispute over the right itself. Compensation may be monetary or in kind: instead of money, other inherited property is transferred, or the share of the compensating heir in the common object is reduced.

The compensation clause is set out in a separate provision: the recipient, the payer, the amount and type of compensation, and the time of performance. In the case of monetary compensation, the procedure and method of payment are determined, and performance is secured by a receipt or another document. In the case of compensation in kind, the specific property is described, together with its identifying features, and confirmation is given that the shares have been equalised.

• The agreement is concluded only between heirs who have accepted the inheritance and does not affect the rights of the deceased's creditors.
• The preferential right to receive the dwelling, household effects and articles of everyday use belongs to the heir who lived with the deceased for a year before the opening of the inheritance, and to property in common ownership — to the heir who owned it together with the deceased.
• The compensation must be proportionate to the excess in the share received, otherwise the agreement risks being challenged as a sham transaction.
• Monetary compensation is confirmed by a receipt or payment document, and compensation in kind — by the transfer of a specific object under a transfer act.
• An agreement on the division of an inheritance is certified by a notary; without this document, registration of rights to real estate in the Legal Cadastre is impossible.
• The parties may provide for liability for delay in paying compensation, for example a penalty, provided it does not contradict the law.

Agreement on the Division of Inherited Property: Form, Content, Registration of Rights

An agreement on the division of inherited property is concluded by heirs who have accepted the inheritance in order to terminate common shared ownership and allocate the objects to each of them. Under the law of the Republic of Kazakhstan, it is subject to the general rules on the form of transactions: simple written form, or notarial form by agreement of the parties. Notarial form is mandatory if at least one object is real estate subject to state registration, or if the heirs so require. The agreement does not replace the certificate of the right to inheritance and does not cancel previously issued certificates, but merely specifies which objects pass to whom.

The content must make it possible to identify all heirs, the composition of the inheritance and the result of the division: information about the deceased and the date of opening of the inheritance, the details of each heir, a list of objects with identifying features, the size of the shares before and after the division, and the procedure for compensation if the shares do not correspond to a division in kind. The signatures of all heirs are mandatory, and in the case of notarial form — the notary's certification inscription. The agreement is considered concluded from the moment it is given the required form, and the transfer of rights to real estate — only after registration.

• the composition of the heirs and confirmation of their rights;
• the list and individualisation of the objects of division;
• the initial and resulting shares of each heir;
• the procedure and amount of compensation in the case of an unequal division;
• the form of the agreement (simple written or notarial);
• the procedure for registering rights to real estate in the Legal Cadastre through the Public Service Centre.

Division of Inherited Property before a Notary: What Can Be Formalised and How the Procedure Works

The division of inherited property before a notary begins with the heirs who have accepted the inheritance concluding an agreement on division between themselves. The notary checks the composition of the inheritance, the circle of heirs and their shares, and then certifies the agreement. Without certification, such a document has no force for the registration of rights to real estate and other property. If there is no dispute between the heirs, everything is formalised in a single notarial act.

Separately, the notary issues a certificate of the right to inheritance — to each heir for their share. The certificate confirms ownership and serves as the basis for further formalisation: registration in the Legal Cadastre, registration with the authorities, and disposal of the property. If the property is indivisible or the heirs have agreed to redistribute the shares, this is reflected in the agreement.

Division of Inherited Property through the Court: When Agreement Could Not Be Reached

If the heirs have not agreed on the division, the dispute is considered by the court. The grounds for the claim are: refusal by the other heirs to sign the agreement, disagreements over the composition and value of the property, claims for recognition of a right to a share or for the allocation of a share in kind, and also cases where one of the heirs uses the item and prevents the others from possessing it.

The claim states the composition of the inheritance, its value, the circle of heirs and their shares, and the request for division. The court verifies the grounds for inheritance and the composition of the property, and determines the shares. If necessary, a valuation is appointed, and in respect of indivisible items the court decides to whom the item should be transferred.

• recognition of the right to an inherited share;
• allocation of a share in kind or transfer of an indivisible item to one of the heirs;
• recovery of monetary or other compensation for the disproportion of the property received;
• determination of the procedure for using the common inherited property;
• exclusion of specific property from the estate.

Lawyer consultation on the division of an inheritance: what issues are addressed at the first appointment

A lawyer consultation on the division of an inheritance begins with an assessment of the prospects: how many heirs there are, who has accepted the inheritance, whether there is a will, and how title to the property is documented. This determines whether the inheritance can be divided by agreement or whether the dispute will have to be resolved in court. At the appointment, it is established whether anyone is contesting the shares, whether there are heirs entitled to a compulsory share, and whether the deadline for accepting the inheritance has been missed.

At the first appointment, the route for division is determined: the heirs may conclude a division agreement if there is no dispute and the composition of the property has been established, or file a claim in court. The lawyer checks that the agreement complies with the requirements of the law of the Republic of Kazakhstan, that there are no terms infringing the interests of any of the heirs, and that the rights of minors or other persons are respected.

• the death certificate of the deceased and documents confirming kinship or the will
• title documents for the flat, house, land, vehicle and other property
• information about the heirs, their contacts and applications to the notary
• documents on debts forming part of the estate
• correspondence and draft division agreements
• available valuation reports and certificates on rights and encumbrances

Comparison of ways to divide an inheritance: agreement, notary, court

An inheritance can be divided by agreement, through a notary or in court. An agreement is suitable when there is no dispute about the composition of the property and the shares. Notarial certification is required if the division concerns immovable property or shares subject to state registration. Court — if no agreement could be reached.

An agreement is a written document signed by all who have accepted the inheritance: it records which property passes to each of them and brings the shares into a convenient form. If immovable property is involved, the agreement is certified by a notary, and the rights are registered in the Legal Cadastre through the Public Service Centre.

• Agreement — when there is no dispute and all heirs are ready to sign a single document.
• Notarial certification — when dividing immovable property or shares requiring registration.
• Court — when there is a dispute about shares, the composition of the property, or someone is evading the division.
• A mixed option — when part of the property is divided by agreement, and the disputed item goes to court.
• Consideration of the interests of incapacitated heirs and minors — regardless of the route chosen.

The choice of method depends on whether there is a dispute and on the type of property; for real estate, the involvement of a notary is mandatory.