In California, probate proceedings often involve complicated issues when it comes to real property left behind by a decedent. When multiple heirs inherit a single piece of property—such as a home or land—they automatically become tenants-in-common, each holding a fractional interest. Disagreements frequently arise over whether to sell the property, keep it, or divide it. When these conflicts can’t be resolved privately, the legal remedy of partition may be necessary to solve the dispute.

What is partition in probate?

Partition is a legal process that allows for the division of real property among co-owners or, if a physical division is not feasible, the sale of the property and distribution of the proceeds. In the context of probate, partition becomes relevant when heirs or beneficiaries cannot agree on how to manage or dispose of the inherited property. This is governed primarily by California Code of Civil Procedure § 872.010 et seq.

Types of Partition

1. Partition by Division (Partition in Kind): This involves physically dividing the property among the co-owners. It’s most suitable for large parcels of land where equitable division is possible.
2. Partition by Sale: When physical division is impractical (e.g., with a family home), the court may order the property sold and the proceeds distributed among the co-owners.
3. Partition by Appraisal: One heir buys out the others based on a court-ordered appraisal. This can be a practical solution when one party wants to retain the property.

Probate and the Need for Partition

In probate, partition issues arise under several scenarios:

• Multiple beneficiaries inherit the property but have different intentions (e.g., some want to sell, others want to keep it).
• Co-ownership Disputes where one party refuses to cooperate.
• Illiquid estates where the real property must be sold to pay estate debts.

The Partition Process

1. Filing the Petition: A co-owner or the estate’s personal representative files a petition for partition with the court.
2. Court Appoints a Referee: The court may appoint a referee to assess the property and recommend a fair method of partition.
3. Hearing and Court Order: After reviewing the referee’s report, the court issues an order for division or sale.
4. Sale and Distribution: If the property is sold, the proceeds are distributed according to each party’s ownership interest.

Considerations for Practitioners

• Notice Requirements: Ensure all co-owners are notified of the partition action.
• Costs and Fees: The expenses related to partition (e.g., legal fees, referee costs) are generally deducted from the sale proceeds.
• Alternative Solutions: Before seeking partition, explore alternatives such as mediation or buy-out agreements to avoid litigation.

Conclusion

Partition actions in probate are often contentious and complex. We highly recommend guidance from a lawyer, as the process can be complex. While partition provides a clear legal solution, negotiation and creative settlement may often lead to better outcomes for all parties involved.