The form of responsibility of the co-heirs to pay off the inheritance debts is not clearly stipulated in the inheritance section of the original "Inheritance Law" and the current "Civil Code" in China, and there are different legislative cases in various countries or regions around the world, and under different legislative models, the different forms of responsibility of the co-heirs to pay off the inheritance debts are mainly different depending on whether the estate is divided, that is, the external liability before the division of the estate and the internal responsibility division after the division of the estate.
First of all, there are three different types of legislation in various countries or regions around the world for the responsibilities of the co-heirs for the repayment of inheritance debts. The first is joint and several liability legislation. In other words, regardless of whether the estate is divided or not, the co-heirs must be jointly and severally liable for the debts of the estate. For example, countries such as Germany, Switzerland, etc. The second is the enactment of liability by share. In other words, regardless of whether the estate is divided or not, the co-heirs are liable for the debts and burdens of the estate in proportion to their share of the inheritance. For example, countries such as Japan, France, etc. The third is eclectic legislation. That is to say, the form of liability of the co-heirs to pay off the estate debts varies depending on whether the estate is divided or not, and before the division of the estate, the co-heirs are jointly and severally liable for the repayment of the estate debts; After the division of the estate, the co-heirs are liable for the debts of the estate. For example, countries such as Portugal.
Secondly, although there is no provision on what kind of liability the co-heirs should bear for the repayment of inheritance debts in our country so far, and there are still different opinions in the theoretical and practical circles, the vast majority of views believe that the form of liability of the co-heirs for the repayment of inheritance debts should be different depending on whether the estate is divided or not, that is, the view of eclectic legislation.
Third, before the division of the estate, the co-heirs shall bear limited joint and several liability for the repayment of the debts of the estate. On the one hand, based on the rule of joint inheritance, after the commencement of inheritance, before the division of the estate, the co-heirs are the general heirs, and all the co-heirs shall also be jointly liable for the debts of all the co-heirs. On the other hand, based on the limited inheritance rule, the heir bears a limited liability for the repayment of the inheritance debts to the extent of the actual value of the estate. Therefore, before the division of the estate, the co-heirs are jointly and severally liable for the debts of the estate to the extent of the actual value of the entire estate, that is, limited joint and several liability. This means that before the estate is divided, the creditors of the estate may request one or more of the co-heirs or all of them to bear the liability for repayment up to the actual value of the estate.
Fourth, after the division of the estate, the co-heirs shall be liable for the repayment of the debts of the estate. After the division of the estate, the co-ownership relationship of the inheritance based on general inheritance among all the co-heirs is extinguished, the co-ownership status ceases to exist, the estate is transferred to the separate ownership of each heir, and the external joint and several liability based on the co-ownership relationship loses the reason for the existence. Therefore, the liability of the co-heirs for the repayment of the estate creditors has also changed from joint liability to share liability, that is, each heir should bear the share liability for the inheritance debts to the extent of the actual value of the estate obtained by them. Of course, there are different views on this, and there is a view that from the perspective of value, the heirs cannot be encouraged to evade joint and several liability through the division of the estate and reduce the protection of estate creditors, so even after the division of the estate, the estate creditors can still claim the liability for the repayment of estate debts from one or several of the co-heirs, which belongs to the viewpoint of the above-mentioned legislation on share liability.
Fifth, according to Article 1163 of the Inheritance Part of the Civil Code, the testamentary heirs and legatees shall pay off the inheritance debts in excess of the actual value of the statutory inheritance in proportion to the inheritance. This provision has made it clear that testamentary heirs and legatees are liable for the debts of the estate on a proportional basis, and at the same time, under the rule of limited succession, limited liability within the value of the estate they receive. Although there is no clear provision in the article as to what kind of liability the legal heirs should bear for the inheritance debts, whether they are joint and several liability or share liability, whether from the perspective of the consistency of the provisions or from the perspective of the supplementary repayment liability of the testamentary heirs and the legatee for the repayment of the inheritance debts after the nature of the legal heirs, it should be understood that the legal heirs should also pay off the inheritance debts in proportion to the amount of the inheritance they receive, especially after the division of the estate.