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Post-Probate Partition for Inherited Property

What to do in a dispute with family member over inherited property, post-probate.

At the end of their lives many people’s only remaining asset is their home. As a result, their heirs often end up having to go through the probate process and share ownership of a house, apartment, or some other piece of real estate. In probate, the default result if a piece of inherited property is given to more than one person is a “Tenancy in Common.” If a deed does not specify how the co-owners share the property then it is assumed to be a tenancy in common.

Each co-owner in a tenancy in common has the right to occupy the property, and to control what is done with it. That means that if a brother and sister inherit a house they will have to agree to sell it, or keep it. One can usually not act without the other.

Sometimes this works out, but other times the siblings have different ideas about what to do with the property. Sadly, this often leads to conflict during what is an already emotional process.

Many people believe that they are stuck with their co-owners post-probate, and have to live with their decisions. However, there is a way out: A Partition Action. A partition action allows the co-owners of piece of property to divide their interests in the property, which in turn allows them to move forward with their separate property on an independent basis. The brother and sister no longer have to agree on everything!

In California, partition cases usually have one of two possible results:

  1. Partition by Division

A partition by division is the less common, but preferred type of partition. When property is partitioned by division, the land is actually divided, new property lines are created and each co-owner receives a part of the previously united property. Each owner owns his or her own piece of land independently and can sell it, build on it, or take any other action with the property that is allowed by law. The courts prefer partition by division because they prefer not to force a sale on someone who intended to own property. However, in many cases partition by division does not work, and so the courts move on to option 2.

  1. Partition by Sale

In many instances partition by division is not a practical solution. The courts will not divide a property if doing so would destroy its usefulness. Also, in many urban areas such as Los Angeles, San Francisco, and Orange County, there are local zoning rules regarding minimum lot size, setbacks, easements, or other restrictions that make a partition by division impossible.

In cases where the property cannot be divided the court will order a partition by sale. In a partition by sale the property is listed and sold just like any other property. At the conclusion of the sale the profits are then distributed to the co-owners in proportion to their ownership.

There are many variations regarding how a partition action can proceed and so it is important for you to be informed about the law and your rights. If you need assistance with a post-probate partition action, or any other dispute regarding your California real estate, contact Schorr Law.

See related: Attorneys Fees in Partition Cases – Schorr Law Argues Appeal

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