Partition of Real Property in Probate

Oh, what to do with the property we may soon own!  That may seem like a good problem to have, but for many potential beneficiaries or heirs in a probate proceeding, this is an issue they would rather do without.  This is also the case in non-probate situations, where the actual owners of the property are not interested in owning the property and attending to all of the duties that accompany real property ownership.  If one owner wants to keep the property, but a separate owner wants to sell, the dispute is often resolved by way of a civil partition action.

Likewise, if two (or more) potential beneficiaries disagree about what they should do with their real estate, a partition action under the California Probate Code is usually the best solution.  Probate Code Section 11950 is the governing section, and the subsequent sections address the procedure.  If the beneficiaries own undivided interests, for example, a single-family home on a parcel, then the court will usually grant the partition and order it sold, either on the market or to one of the beneficiaries if they requested this and were able to convince the court that they should be able to purchase it.  If the property is divisible, such as a parcel that could be split into two lots, then the court’s order may contain a direction to split the property and allow each party to take their fair share, and do what they want with it.

Though it sounds rather simple here, a partition can often become a rather complicated process.  Appraisers may be needed to testify as to the value of the property.  Perhaps a real estate broker or two will be asked to testify as to the marketability of the property.  Accountants will be necessary if there is a dispute regarding the accounting of the property’s income and expenses.  And of course, each side has attorneys making their case before the court. 

Do I recommend partitions? Yes.  But only where the beneficiaries or current property owners simply cannot find a solution that involves keeping the property or selling it informally.  If the twe sides can sit down and develop a plan that works out for everyone in some regard, the partition action can be avoided.

One more thing about a partition in probate.  The court’s order only affects the interests in the property that are subject to the probate administration, unless other owners or would-be owners agree and consent to the court’s jurisdiction over their interests.

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