real estate law

What Are the Rules for Buying Probate Property (Prob. Code § 10580)?

Published on: May 5, 2023 | By Underwood Law Firm, P.C.

552023-300x300 When a person passes away and leaves behind the property, their property must first pass through the probate process before being passed down to family members and loved ones. Essentially, the probate process is a legal process that determines the execution of the estate of someone who has passed away. Moreover, during the probate process, the court appoints an executor or an administrator to administer the deceased’s estate. Therefore, probate property refers to any assets or property left behind by a deceased person that passes through the probate process.

It is possible to sell or buy probate property while it is still in the probate process. However, the sale of probate property is different from a standard sale of real property, and there are court and statutory procedures that need to be taken into consideration. At the Underwood Law Firm, our attorneys are more than familiar with the sale of probate property and the requirements that follow.

The Probate Process

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What is a Petition to Determine Distribution Rights (Prob. Code § 11705)?

Published on: May 3, 2023 | By Underwood Law Firm, P.C.

532023-300x300 For family members of a deceased loved one, the most important part of probate proceedings is the final distribution of the estate. This occurs once the estate’s debts and obligations have been satisfied, and it serves to more or less end the probate of the estate.

But what if someone thinks they’re entitled to a share of the estate but was left out of the proceedings from the outset? This is where the petition to determine distribution rights comes into play. It’s a legal mechanism whereby omitted heirs or interested parties ask to court to be included in the final distribution.

What is a Distribution in Probate?

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What are the steps to partition trust property?

Published on: April 28, 2023 | By Underwood Law Firm, P.C.

4282023-300x300 Partitions are lawsuits that split up the property between multiple co-owners so that each can take their equity out of the home. The prototypical partition is that between unmarried partners or business partners. Both own equal shares, but only one wants to end the relationship and take their money out. Partitions enable this to happen, usually ending with a court-ordered sale of the subject property.

The presence of a trust changes this calculus. This is because a trustee typically holds the property for the benefit of another. (Estate of Yool (2007) 151 Cal.App.4th 867, 874.) As such, pursuing a partition becomes much more difficult to do, especially because partitions cannot be used to disrupt the purpose and provisions of an express irrevocable trust.

At the Underwood Law Firm, our attorneys are well-versed in these matters and familiar with the intricacies of the interactions between property law and probate procedures. The following are steps that every litigant should keep in mind before pursuing the partition of a property subject to a trust.

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What is a Deed?

Published on: April 26, 2023 | By Underwood Law Firm, P.C.

4262023-300x300 A deed is a legal instrument, evidenced in writing, to confirm the ownership interest or legal rights of an owner of real property. Essentially, a deed is necessary to determine the titleholder of a piece of real estate. Moreover, a deed grants an owner of real property legal rights to convey, sell, or transfer the property. Therefore, when purchasing a piece of real property, it is extremely important for a person to obtain a deed in order to evidence their ownership in writing and protect their legal rights in the property.

However, a deed is not just a simple piece of paper establishing a person’s ownership interest in the property. There are several elements that are required in order for a deed to be valid. At the Underwood Law Firm, our attorneys are more than familiar with the elements of a deed and its effect on real property.

Elements of a Valid Deed

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What is a “legal description” of real estate (Civil Code section 1092)?

Published on: April 14, 2023 | By Underwood Law Firm, P.C.

4142023-300x300 A property’s legal description is an essential element of any property transfer, and it serves as the basis for most property-based lawsuits. Quiet title summons, partition complaints, and lis pendens notices must all contain legal descriptions, just to name a few.

Funnily enough, however, despite the legal description importance, there is no standard form in use. It can be a property’s address (if it has one), a metes and bounds description, or (commonly), it can reference a county’s official map.

But what is not sufficient, at least by itself, is a property’s assessor parcel number (APN). This is because an APN is a number assigned to a parcel map to designate property or groups of properties as being subject to certain taxes. The county assessor isn’t concerned with assigning numbers to correctly measure the physical size of the lot. Instead, an assessor may combine properties or cut them in half for taxation purposes.

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What are the different types of real estate (Civil Code section 765)?

Published on: April 12, 2023 | By Underwood Law Firm, P.C.

4122023-300x300 An estate is categorized by the duration of time one holds an interest in the estate. For example, an estate acquired through inheritance is categorized differently from an estate for years. There are three different ways an estate can be categorized, which is codified in California Civil Code section 765. Essentially, section 765 categorizes an estate based on the character of the property.

Under section 765, there are freehold estates, chattels real, and chattel interests. Depending on the character of the estate, a person holds different rights in the subject property. At the Underwood Law Firm, our attorneys are more than familiar with freehold estates, chattel real, and chattel interests.

What is a Freehold Estate?

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How to Acquire a Default Judgement in a Quiet Title Action (CCP § 764.010)?

Published on: April 7, 2023 | By Underwood Law Firm, P.C.

472023-1-300x300 An action to quiet title allows a litigant to clear title or have the court establish title to a piece of real property where the title to that property is in the issue. Moreover, a quiet title action is not solely for the purpose of establishing a legal interest in real property but can also be asserted to establish an equitable interest in real property. For example, when two people claim that they own an entire piece of property, one of those parties may file a quiet title action to determine which one of the two persons actually holds title to the property.

Sometimes, however, the other party will refuse to participate in the lawsuit, which requires a party to win by “default.” In those circumstances, a question arises about what is necessary to do to succeed. The law explicitly addresses these circumstances.

Specifically, Code of Civil Procedure section 764.010 provides: “The court shall examine into and determine the plaintiff’s title against the claims of all the defendants. The court shall not enter judgment by default but shall, in all cases, require evidence of the plaintiff’s title and hear such evidence as may be offered to respect the claims of any of the defendants, other than claims the validity of which is admitted by the plaintiff in the complaint. The court shall render judgment in accordance with the evidence and the law.”

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Can one owner sign a lease for an entire property?

Published on: April 5, 2023 | By Underwood Law Firm, P.C.

452023-300x300 Yes, although the tenant is not allowed to exclude the non-consenting owners. The reason for this is grounded in ancient legal doctrine regarding the “right to possession” that all co-owners of property share together. Each owner may exercise this right, and each may grant it to a third party, should they so choose, even without the consent of the other owners.

While this may be legally allowed, however, it rarely results in anything other than trouble and lawsuits. In these situations, getting the right real estate attorney by your side can make all the difference. At the Underwood Law Firm, our attorneys are well-versed in the law surrounding co-ownership and the rights and duties accompanying it. Here, we’re with you every step of the way.

How does the law view leasing jointly-owned property?

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10 Things Every Realtor Needs to Know About Partitions

Published on: March 29, 2023 | By Underwood Law Firm, P.C.

3292023-300x300 While it may not be obvious, a sizeable portion of the work that real estate agents and realtors do is court-ordered. Real estate law is a massive field, and often, the disposition of litigation results in the court forcing the sale of a property, be it a business, home, condominium, etc. As such, many realtors find themselves acting as agents or referees for parties to a lawsuit.

This situation finds its most common form in the partition. The partition is a special type of lawsuit wherein parties take their equity out of a property by putting it up for sale. However, should a real estate agent accept this task, there are a number of considerations they need to take in mind. The Underwood Law Firm handles partitions every day. As such, we’ve come up with 10 helpful items that every realtor should keep in mind if they’re tasked with partitioning a property.

Number 1: What is Partition and How Does a Sale Begin?

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How do you enforce real estate contracts in Probate Court (Probate Code section 850)?

Published on: March 24, 2023 | By Underwood Law Firm, P.C.

3242023-300x300 Real estate contracts are an expansive field of both law and life. Sales, leases, options, and certainly wills can all fall under this broad category. Normally, once a contract is signed, parties can go to court to enforce them by filing a lawsuit. But if one of the parties has passed away, the transaction becomes more complicated.

Thankfully, the California legislature created Probate Code section 850 to remedy some of the problems inherent to these situations. No longer do separate lawsuits need to be filed. Instead, interested parties can file a special petition to get the probate court to enforce a contract concerning the subject property. For instance, a son could petition to enforce a contract with his decedent’s mother where she had promised to transfer him the house upon death.

That said, the law surrounding these petitions is still dense and unwieldy for inexperienced litigants. As such, securing the right attorney in these situations can make all the difference. At the Underwood Law Firm, our attorneys are well-versed in these matters and are ready to assist. Potential litigants should not hesitate to contact our office so that we can begin making your goals a reality.

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