INHERITING PARTIAL INTERESTS IN CALIFORNIA REAL PROPERTY
It is common for a parent or other family member to distribute real property to a family member or family members equally or in other proportions. For example, a parent or parents may die without a Will or Trust (i.e. intestate) owning real property(ies) and the children or other family members inherit an interest in the real property. Many times this results in a conflict between the coowners as to what to do with the interests in the real property, including selling the real property or an interest in the real property.
A new Uniform Partition of Heirs Property Act sets forth a procedure whereby you may file an action to partition the real property. The Uniform Partition of Heirs Property Act, in summary, provides that if a cotenant or cotenants file an action for partition of a parcel of property that is co-owned by one or more parties who have acquired their interest(s) from a relative, the non-partitioning owner(s) may buy out the interest of the partitioning owner(s) according to a designated, court-supervised, procedure. See CCP §§874.311–874.323.
“Heirs property” is defined in the Act as real property “for which there is no written agreement regarding partition that binds the cotenants of the property, one or more of the cotenants acquired title from a relative, and meets one of specified thresholds regarding cotenants who are relatives or who acquired title from a relative.”
With regard to “heirs property,” if a cotenant requests partition by sale, the act gives cotenants who did not request the partition the option to buy all of the interests of the cotenants that requested partition by sale. In other words, if the real property is co-owned by family members, or if all or a portion of the property was received from a family member, then the defendant in a partition action now has a right to buyout the cotenant plaintiff’s interest in the real property. If all of those interests are not purchased or a cotenant who has requested partition in kind remains after purchase, the act requires the court to partition the property in kind or by sale.
In the partition action if the court determines that a real property is “heirs property,” unless each of the cotenants agree to exempt the property from the Act, the court must order an appraisal, hold a hearing for any objections to the appraisal, give cotenants a right of first refusal on the purchase of any cotenant who requests a partition by sale, and provide for an open-market sale of the property in the best interests of all cotenants.
Additionally, the court is required to consider partitioning the real property in “kind.” In kind means the division of property into physically distinct and separately titled parcels as opposed to dividing proceeds from the sale of property through a “partition by sale.” The act also permits the court to apportion the costs of partition among the parties in proportion to their interests, but prohibits the apportionment of costs among parties that oppose the partition, except as specified.
If you have a California probate matter and need assistance in probating an estate please contact me. You can reach me by phone at (760) 501-2713, by email at [email protected] or through my online contact form.
I handle probate matters in all California counties in all California probate courts, including Southern California Counties, such as Imperial County, Los Angeles County, Orange County, San Bernardino County, and San Diego County. I represent parties residing in California and outside of California, including foreign countries.
Copyright © 2022, William K. Sweeney, Attorney at Law. All rights reserved. Unauthorized use and/or duplication of this material without express and written permission from this article’s author and/or owner is strictly prohibited.
To schedule a consultation, call me toll free at 800-575-9610 or locally at 760-989-4820. I enjoy meeting in person whenever possible, but am also available via Skype and email or through my online contact form.
INHERITING PARTIAL INTERESTS IN CALIFORNIA REAL PROPERTY
It is common for a parent or other family member to distribute real property to a family member or family members equally or in other proportions. For example, a parent or parents may die without a Will or Trust (i.e. intestate) owning real property(ies) and the children or other family members inherit an interest in the real property. Many times this results in a conflict between the coowners as to what to do with the interests in the real property, including selling the real property or an interest in the real property.
A new Uniform Partition of Heirs Property Act sets forth a procedure whereby you may file an action to partition the real property. The Uniform Partition of Heirs Property Act, in summary, provides that if a cotenant or cotenants file an action for partition of a parcel of property that is co-owned by one or more parties who have acquired their interest(s) from a relative, the non-partitioning owner(s) may buy out the interest of the partitioning owner(s) according to a designated, court-supervised, procedure. See CCP §§874.311–874.323.
“Heirs property” is defined in the Act as real property “for which there is no written agreement regarding partition that binds the cotenants of the property, one or more of the cotenants acquired title from a relative, and meets one of specified thresholds regarding cotenants who are relatives or who acquired title from a relative.”
With regard to “heirs property,” if a cotenant requests partition by sale, the act gives cotenants who did not request the partition the option to buy all of the interests of the cotenants that requested partition by sale. In other words, if the real property is co-owned by family members, or if all or a portion of the property was received from a family member, then the defendant in a partition action now has a right to buyout the cotenant plaintiff’s interest in the real property. If all of those interests are not purchased or a cotenant who has requested partition in kind remains after purchase, the act requires the court to partition the property in kind or by sale.
In the partition action if the court determines that a real property is “heirs property,” unless each of the cotenants agree to exempt the property from the Act, the court must order an appraisal, hold a hearing for any objections to the appraisal, give cotenants a right of first refusal on the purchase of any cotenant who requests a partition by sale, and provide for an open-market sale of the property in the best interests of all cotenants.
Additionally, the court is required to consider partitioning the real property in “kind.” In kind means the division of property into physically distinct and separately titled parcels as opposed to dividing proceeds from the sale of property through a “partition by sale.” The act also permits the court to apportion the costs of partition among the parties in proportion to their interests, but prohibits the apportionment of costs among parties that oppose the partition, except as specified.
If you have a California probate matter and need assistance in probating an estate please contact me. You can reach me by phone at (760) 501-2713, by email at [email protected] or through my online contact form.
I handle probate matters in all California counties in all California probate courts, including Southern California Counties, such as Imperial County, Los Angeles County, Orange County, San Bernardino County, and San Diego County. I represent parties residing in California and outside of California, including foreign countries.
Copyright © 2022, William K. Sweeney, Attorney at Law. All rights reserved. Unauthorized use and/or duplication of this material without express and written permission from this article’s author and/or owner is strictly prohibited.
To schedule a consultation, call me toll free at 800-575-9610 or locally at 760-989-4820. I enjoy meeting in person whenever possible, but am also available via Skype and email or through my online contact form.