Partition Action Archives

Trust Asset Distributions (Probate Code § 16246)

Published on: February 9, 2024 | By Underwood Law Firm, P.C.

underwood-trust-asset-distributions-300x300 A trust is a legal device often used in estate planning. A trust may be established in the trustor’s lifetime, or it may be established in the trustor’s will where it takes effect once the trustor dies and the will is admitted in probate. Generally, assets in a trust are distributed according to the trustor’s intent, which can be specified in the trust instrument or document.

If a trust instrument is not specific, the Probate Code gives trustees broad discretion to distribute the trust’s assets by: (1) liquidating them and distributing the proceeds between the beneficiaries (in cash distribution); (2) allocating equal shares in interest in the trust’s assets between the beneficiaries (pro rata in kind distribution); or (3) allocating whole assets separately to different beneficiaries (non-pro rata in kind distribution).

What is a trust?

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Newsweek Recognizes Eli Underwood as Partition Expert

Published on: January 31, 2024 | By Underwood Law Firm, P.C.

More unmarried couples are purchasing houses together than ever, but there can be some dangerous legal implications if they decide to go their separate ways, an expert told Newsweek.

As companies institute return-to-office policies, many couples find themselves needing to live in different locations, complicating the home purchase and mortgage they signed on for.

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Affidavit of Death of a Joint Tenant (Probate Code § 210)

Published on: January 19, 2024 | By Underwood Law Firm, P.C.

underwood-affidavit-death-joint-tenant-300x300 Relationships are hard, and real estate relationships are even harder. People can own real estate, called “holding title,” in many different ways. One of the more common ways that non-married couples hold title to real estate is as a joint tenant. And one of the core features of a joint tenancy is a “right of survivorship,” which means that if one of the owners dies, then the other ones inherit their shares automatically without the need for the probate process.

Instead of a lengthy court process, in order to perfect title, the only thing that the other owner must do is to record an affidavit of joint tenant. This article will provide some background information on joint tenancies, explain things needed to know about an affidavit of death of joint tenant, and discuss a common scenario so that people who find themselves in these situations will be better equipped to handle them.

What is a joint tenant?

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Selling Partition Property Through a Private Sale (CCP 872.720)

Published on: January 17, 2024 | By Underwood Law Firm, P.C.

underwood-selling-partition-property-private-sale-300x300 Real property partitions help co-owners and co-tenants divide real estate that they purchased together. Partition actions can be agreed upon by the parties, but if there is no agreement, a court will oversee the partition. Under California law, a court will first determine each party’s interest in the property and then determine the way the property will be partitioned. (Code Civ. Proc., § 872.720(a).) California Civil Code of Procedure section § 872.720(a) provides:

If the court finds that the plaintiff is entitled to partition, it shall make an interlocutory judgment that determines the interests of the parties in the property and orders the partition of the property and, unless it is to be later determined, the manner of partition. (Code Civ. Proc., § 872.720.)

Property partitions can be completed by dividing the physical property, by selling the property and dividing the amount of the sale among the interested parties, or by appraisal with all parties’ consent. In partitioning property through a sale without an agreement, courts may select a referee to assist in the sale. While courts presume that physical division of the properties is the fair option, a party wanting to sell the property can prove that it would be fairer to sell it than it would be to divide it. (Butte Creek Island Ranch v. Crim (1982) 136 Cal.App.3d 360, 366.)

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Partition Actions by Personal Representatives (Prob. Code § 9610)

Published on: January 5, 2024 | By Underwood Law Firm, P.C.

underwood-partition-actions-personal-representative-300x300 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

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Partitions of Spousal Property with Third Parties (Fam. Code § 2021)

Published on: January 4, 2024 | By Underwood Law Firm, P.C.

underwood-partition-spousal-property-third-parties-300x300 Family Code section 2021 provides that a court “may order that a person who claims an interest in the proceeding be joined as a party” to nullity, dissolution, and legal separation proceedings. (Fam.C. § 2021(a).) An interested third party may wish to join a family law proceeding, or an existing party may want to join the interested individual. An existing party may request that the court join the third party if the third party possesses or claims to own property that the court has jurisdiction over in the proceeding. (Cal. Rules of Court 5.24(c)(1).) Additionally, a third party may request to be joined if they have been served a temporary restraining order that affects their ability to use property they possess or claim to own.

When will courts order joinder in Family Law?

When a claimant has a property interest at stake and is requested to be joined, the court has the discretion to decide whether the claimant will be joined as a party. (Schnabel v. Superior Court (1994) 30 Cal.App.4th 758, 762-63.) In other words, the court is allowed to deny a request for joinder even if the individual seeking it has a legitimate interest in the proceeding. This is called a “permissive” joinder. Joinders are mandatory only when the party sought to be joined has or claims physical custody or visitation of a minor child involved in the family law proceeding. (Cal. Rules of Court 5.24(e)(1).)

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Law.com recognizes Underwood Law Firm as Leading Partition Firm

Published on: December 22, 2023 | By Underwood Law Firm, P.C.

underwood-law-com-recognizes-partition-firm-300x300 Underwood Law Firm is a finalist for the California Legal Awards’ Vanguard Award.

Featured on Law.com

Underwood Law Firm is a finalist for the California Legal Awards’ Vanguard Award, honoring firms and companies that have revolutionized their business to stay one step ahead of the current and future forces shaping the legal industry.

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The Complete Guide to the Partition of Real Property Act (Part 5)

Published on: December 1, 2023 | By Underwood Law Firm, P.C.

What if parties do not appear in a lawsuit requesting partition in kind under the Partition of Real Property Act?

underwood-partition-real-property-guide-part-5-300x300 Just as there are special provisions for defaulting parties with partitions by sale, so too are there unique rules where some defendants fail to appear in a partition in kind action.

The text of the statute provides that, “if the court orders a partition in kind, the court shall allocate to the cotenants that are unknown, unlocatable, or the subject of a default judgment… a part of the property representing the combined interests of these cotenants as determined by the court.” (CCP § 874.318 (d).)

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The Complete Guide to the Partition of Real Property Act (Part 4)

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

underwood-partition-real-property-guide-part-4-300x300 This is a continuation of our ongoing series on the Complete Guide to the Partition of Real Property Act. For complete comprehension, we would suggest starting from the beginning.

As a quick summary, the Partition of Real Property Act is a law specific to California, passed in July 2022. (Stats 2022 Ch. 82 § 3 (AB 2245).) It brought significant changes to how partitions are conducted in the state, if the underlying parties are tenants in common. But even though the act is particular to California, it is actually derived from the Uniform Partition of Heirs Property Act (“UPHPA”).

Because of the similarity between the laws, and in order to deliver the most comprehensive understanding of the Partition of Real Property Act, this guide references law review notes, statutes, and appellate decisions from other states interpreting the UPHPA.

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How Does a Lender Respond to a Partition Action (Civ. Code § 2924l) [With Form]

Published on: November 22, 2023 | By Underwood Law Firm, P.C.

underwood-how-does-lender-respond-partition-action-300x300 A declaration of non-monetary status is a special type of court filing reserved for trustees under a deed of trust. These trustees have limited powers, but are often named as defendants in lawsuits by plaintiffs seeking to ensure proper joinder.

Of course, being named in a complaint carries with it several responsibilities, chief among these being that every defendant must issue a responsive pleading, such as an answer. For the trustee included purely as a precautionary measure, this is frustrating. Not only will they need to file an answer, which is both costly and time consuming, but they will also consistently be served with court documents in a case they have no interest in litigating.

To get around this hassle, trustees may file a declaration of non-monetary status, provided the relevant deed of trust is the “subject” of a lawsuit. Successfully filing this declaration means that the trustee no longer needs to participate in the lawsuit, provided the trustee also agrees to be bound by any court order relating to the subject deed of trust.

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