My brother won't divide the inheritance
What to do when the heirs disagree about dividing the estate.
What to do
When one heir refuses to agree on dividing the estate, the first thing to clarify is what stage the proceeding is at. If the probate proceeding is still ongoing, the court (or the notary public to whom conducting the proceeding has been entrusted) waits for the heirs to state their position on the inheritance and, if they all agree on how to divide it, incorporates that agreement directly into the inheritance decision. Without such an agreement, the decision only establishes that the heirs are co-owners of the estate in specific (ideal, undivided) shares - without specifying who receives which particular item.
Once the decision becomes final, heirs who cannot agree remain in what is known as a co-heirship (naslednička zajednica): they jointly manage and dispose of the inherited property until it is divided. Every heir has the right to request division at any time, and this right does not become time-barred. The first and cheapest step is always to attempt a division by agreement - a written agreement that, where real estate is involved, must be certified (solemnized) by a notary public in order to be usable for registering ownership.
If an agreement genuinely isn't possible, what remains is a lawsuit for division of the estate before the civil court. In that proceeding, the court first examines whether physical division of the property among the heirs is possible; only if that is not feasible without a significant loss of value does it order the sale of the property and division of the proceeds. It is also worth keeping in mind that an heir who lived or worked together with the deceased can request that specific items be allocated to them, with a balancing payment to the other heirs - this is often a basis for a practical arrangement even when relations are strained.
When to consult a lawyer
Engaging a lawyer makes sense as soon as it becomes clear that an agreement isn't possible without a mediator - before filing any petition or lawsuit, to assess what property is actually part of the estate, how the division can most favorably be carried out (in kind or civil), and what the prospects are for claiming priority over specific items (e.g., on the basis of having lived and worked together with the deceased, Art. 232 of the Inheritance Law). A lawyer is especially useful when the estate consists of real estate of varying value, when there is suspicion that one of the heirs has already disposed of part of the estate without the others' consent, or when, alongside the division itself, something else is also in dispute - such as the validity of the will or the circle of heirs - since such a dispute is resolved separately, in litigation, before the question of division is even reached.
Sources
- Tariff on Attorneys' Fees and Expense Reimbursement (Tarifa o nagradama i naknadama troškova za rad advokata, Sl. glasnik RS No. 43/2023), Items 13 and 22
- Tariff on Attorneys' Fees and Expense Reimbursement, consolidated text (Sl. glasnik RS Nos. 43/2023 and 56/2025) (paragraf.rs)
- Law on Inheritance (Zakon o nasleđivanju), Art. 231
- Law on Court Fees (Zakon o sudskim taksama), Art. 25, Fee Schedule Items 1-2
What to do
- Check whether the probate proceeding has actually been concluded by a final inheritance decision. If it is still ongoing, the easiest way to reach a division is for all the heirs to agree on how to divide the estate before the notary public/court - the court then incorporates that agreement directly into the inheritance decision (Zakon o vanparničnom postupku, Art. 122, para. 3).
- If the decision has already been issued and the heirs (e.g., you and your brother) remain co-owners in a co-heirship until division, try a written agreement on dividing the estate. For real estate, that agreement must be in the form of a notarized (javnobeležnički potvrđena) instrument to be usable for registration in the cadastre.
- If one of the heirs lived or worked together with the deceased in a shared household, that heir has the right to request that specific items be allocated to their share, with the difference paid out to the other heirs in money (Zakon o nasleđivanju, Art. 232) - this is a useful point of leverage in negotiations over the division.
- If an agreement is not possible, division is sought by a lawsuit before the civil court. The court will, as a rule, first consider physical (in-kind) division; if the property cannot be divided in kind without significantly reducing its value, the court orders a civil division - sale of the property and division of the proceeds among the heirs in proportion to their shares.
- Until the division is completed, the heirs jointly manage and dispose of the estate; if they cannot agree even on management, any heir may ask the court to appoint an administrator of the estate (Zakon o nasleđivanju, Art. 229).
What it costs
The court fee for the lawsuit and for the judgment in a division dispute is calculated based on the value of the estate or the portion being divided (Zakon o sudskim taksama, the Law on Court Fees, Art. 25 and Fee Schedule Items 1-2). If the division is reached by agreement before a notary public, a notary's fee is payable, along with any cost of certifying the division agreement. The tariffs change periodically, so confirm the current court and notary fees for the specific value of the estate.
Basis for the attorney fee: Tariff on Attorneys' Fees and Expense Reimbursement (Tarifa o nagradama i naknadama troškova za rad advokata), Item 13 (claim for division, based on the value of the share being divided); a petition for division in non-contentious proceedings falls under Item 22, which sets the same fee as Item 13
FAQ
Can the probate court force my brother to agree to a division?
No. The probate proceeding serves to establish who the heirs are and the size of each one's share, not to impose a specific way of physically dividing the property. If the heirs cannot reach an agreement themselves, the court cannot substitute its own agreement for theirs - the decision only recognizes the ideal (undivided) shares, and the actual division is resolved later, either by agreement or by lawsuit.
Do I lose the right to request division if a lot of time passes after a parent's death?
No - the right to divide the inheritance does not become time-barred by law (Zakon o nasleđivanju, Art. 228, para. 2). Delay still carries practical risks, though: for as long as the co-heirship lasts, managing and disposing of the estate requires everyone's consent, which can further complicate relations between the heirs.
What if my brother has, in the meantime, transferred his share to a third party?
Before the division is carried out, an heir may transfer their inheritance share only to a co-heir, not to a third party (Zakon o nasleđivanju, Art. 231). The transfer contract must be made as a notarially certified (solemnised) document, and a contract with someone who is not an heir only obliges the heir to hand over their share after the division, giving the acquirer no other rights until then. If a transfer nevertheless occurred in some other way, or after the division, that is a separate question that depends on the specific circumstances, so consult a lawyer before taking any steps.
Does all the property have to be sold first, and then the money divided?
Not automatically. The court (or the heirs themselves, by agreement) first considers dividing the property in kind - for example, having each heir receive specific real estate or items. Sale and division of the proceeds (civil division) comes into play only once in-kind division is not possible without a disproportionate reduction in the value of the estate.