Often times, a person’s estate includes property. While property disputes between co-owners are complicated enough, a property dispute including the estate of a deceased person adds an entirely different layer of complexity to the situation. In these instances, there are special laws that apply to help to clarify the process.
This article will discuss who may bring a partition action on behalf of a deceased person, and address some of the complexities of that process. These complexities arise because of something known as “venue,” or the specific rules relating to the right place or forum to resolve the dispute. In other words, a debate about where to have the debate. Hopefully, this article will clarify that process to simplify what is already an emotionally difficult situation.
Who can sue on behalf of a deceased person
California Probate Code section 9283 states that the personal representative of a decedent may initiate proceedings against the decedent’s cotenants “for partition of any property in which the decedent left an undivided interest.” The estate representative may do this by filing a civil partition action separate from any ongoing probate court proceedings, and the representative does not need the probate court’s permission before bringing the action. (see Prob. Code § 9610.)
In a few cases, a representative does not have to bring a separate civil suit outside of the estate administration happening in the probate court. When the decedent’s undivided property interests are left to multiple heirs or beneficiaries, the representative or any of the heirs or beneficiaries can request that the probate court partition those property interests during the estate administration. (Prob. Code § 11950(a).)
When other third-party co-owners share in the property interest, however, then representative must bring a civil partition action outside of probate court unless these co-owners consent to be bound by the probate court’s partition or division of the property interests. (Prob. Code § 11950(b).)
Because cotenants generally can initiate a partition as of right, estate representatives may also seek to partition the decedent’s property interests as of right. (see CCP § 872.710(b).) This means that if the plaintiff – in this case, the estate of the interest holder – can establish their property interest, the partition will be granted even over the objection of other cotenants.
On the other hand, a representative seeking partition involving successive estates and partnership property may not do so as of right. (CCP §§ 872.710(c) & 872.730.) Whether partition will be allowed for successive estates depends on “if it is in the best interest of all of the parties.” (CCP § 872.710(c).) Partitions regarding partnerships are allowed if the court finds partition appropriate in the circumstances. (CCP § 872.730.)
What is the procedure for a representative filing a partition action outside probate court?
When the personal representative must file a civil partition action outside of probate proceedings, they are required to file their complaint in the superior court for the county where the property is found. (CCP § 872.110(b)(1).) The complaint must include the property’s legal description and address, the plaintiff’s claimed interests in the property, the interests of others in the property that are known to the plaintiff, the desired estate to be partitioned, a justification for sale (if sale is desired), and a description of the location and existence of a title report (if it has been obtained). (CCP § 872.230.) The third parties that have an interest in the property or that the plaintiff (e.g., the personal representative) knows to have an interest must be joined to the action as defendants. (CCP § 872.510.)
As the civil partition action proceeds, the court has the power to issue a variety of rulings related to the partition of the property. For example, the court can issue orders to prevent waste to the property, temporary restraining orders, injunctions, and rulings to prevent interference with the partition. (CCP § 872.130.)
What is the procedure for a representative requesting partition in probate court?
California probate law allows certain partition actions to be commenced in probate court during estate administration proceedings. Allowing partition to occur during the estate’s administration when a decedent’s undivided property interests are left to several beneficiaries helps to avoid forcing beneficiaries in this situation to spend time and resources bringing their own civil actions outside of probate court.
In this scenario, an estate’s beneficiaries might not all agree on the appraised value of a property, making the distribution of the estate unfair without a proper partition of the property. (see In re Estate of Canfield (1951) 107 Cal.App.2d 682, 686-87.) One or more of the beneficiaries or the personal representative can file a verified petition to initiate the partition of the property. (Prob. Code §§ 1021 & 11950(a).) The individual filing the petition may do so at any time during the administration proceeding “before an order for distribution of the affected property becomes final.” (Prob. Code § 11951(a).)
Can a representative file a partition action without an attorney?
In 2023, the California Court of Appeals held that an estate representative may not initiate partition proceedings without an attorney when the representative is bringing the action “against third parties for the benefit of the estate’s beneficiaries.” (Estate of Sanchez (2023) 95 Cal.App.5th 331, 343.) The court reasoned that allowing a representative to bring such a suit would essentially permit the unlicensed practice of law in violation of California statute.
An estate representative might still be able to represent themselves in matters that directly relate to the representative’s role in administering an estate. For example, a trustee representing herself in filing an action to get instructions from the court on how to construe trust documents does not amount to the unauthorized practice of law. (Donkin v. Donkin (2020) 47 Cal.App.5th 469, 473.)
The court in Donkin noted that the trustee was not initiating legal action outside of probate proceedings or involving third parties. However, when the representative brings a legal action for the benefit of others and not as an attempt to “fulfill [their] duties as executor and personal representative,” the representative may not bring an action without the assistance of counsel. (Estate of Sanchez (2023) 95 Cal.App.5th 331, 342.)
How can the attorneys at Underwood Law Firm, P.C. assist you in a representative-initiated partition action?
Real estate disputes are tricky, and a death of a loved one adds new layers of complexity. If you are a representative of an estate and believe you need to initiate the partition of real property, it is vital that you seek out a knowledgeable and credible probate and partition attorney.
In light of the appellate court’s holding in Estate of Sanchez, it is important to recognize that personal representatives can only proceed without an attorney in disputes arising from estate distribution in limited circumstances. Our experienced attorneys can guide you in your role as a personal representative and will be with you every step of the way.