California Partition Law Blog

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?

Continue reading →

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.)

Continue reading →

Equity as a Settlement Offer (Code of Civil Procedure § 998)

Published on: January 12, 2024 | By Underwood Law Firm, P.C.

underwood-equity-settlement-offer-300x300 California Code of Civil Procedure section 998 incentivizes parties in litigation to settle their disputes before trial. The statute provides that up to ten days before trial, either party may submit a written offer to the other to settle the case under specified terms. (CCP § 998(b).)

If the plaintiff rejects the defendant’s timely offer and, after trial, receives a judgment not more favorable than the one offered by the defendant, then the plaintiff must “pay the defendant’s costs from the time of the offer.” (CCP § 998(c)(1).) In most civil actions, the court also has the discretion to force the plaintiff to cover a “reasonable sum” of the defendant’s costs of using expert witnesses incurred after the offer was made.

When a defendant rejects the plaintiff’s timely offer and later receives a judgment at trial that is not more favorable than what the plaintiff offered, the court has the discretion to force the defendant to cover a “reasonable sum” of the plaintiff’s costs of using expert witnesses incurred after the offer was made. (CCP § 998(d).)

Continue reading →

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

Continue reading →

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).)

Continue reading →

A Guide to the Independent Administration of Estates Act

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

underwood-guide-independent-administration-estate-300x300 The Probate process can be intimidating and confusing. In addition to having to deal with the death of a loved one, adding the resolution of legal and real estate issues on top of everything else can feel like a lot.

Recently, the Legislature changed the law to attempt to make things smoother, and easier on the heirs of estates by passing a law known as the Independent Administration of Estates Act (“IAEA”). The purpose of this guide is to provide an introduction to that law, and share information that will be helpful to those attempting to navigate estate issues.

What is the Independent Administration of Estates Act

Continue reading →

A Primer on the Corporate Transparency Act

Published on: December 27, 2023 | By Underwood Law Firm, P.C.

underwood-primer-corporate-transparency-300x300 The Corporate Transparency Act of 2020 (the “CTA”) is a Federal law set to go into effect on January 1, 2024. It forces certain members of businesses (those who formed them and those who own large portions of the entity) to report sensitive information to the Federal Government.

Congress’ justification is that more than two million corporations and LLCs are formed in the United States each year. Yet, most or all of the States do not require information about the beneficial owners of the corporations and LLCs.

This allows bad actors to conceal their identities while using their entities to facilitate illegal activity, including money laundering and the financing of terrorism. The CTA seeks to shine a light on these bad actors, thereby protecting interstate commerce and protecting vital national security interests. (P.L. 116-283, Div F, Title LXIV, § 6402, 134 Stat. 4604.)

Continue reading →

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.

Continue reading →

The LLC Buyout Procedure (Corp. Code § 17707.03)

Published on: December 20, 2023 | By Underwood Law Firm, P.C.

underwood-llc-buyout-procedure-300x300 The statutory LLC buyout is a special remedy designed for lawsuits seeking to dissolve LLCs. After members of the entity sue to dissolve the business, the other members (all of them or some of them) have the statutory ability to avoid dissolution by buying out the membership interests of these “moving parties.”

However, problems can arise, especially when it comes to setting the buyout value. Additionally, there are some situations where the buyout can actually be terminated altogether. At Underwood Law Firm, our attorneys are knowledgeable in the fields of pass-through entities and real property. If you’re looking to proceed with dissolution, then we may be able to help.

When Can an LLC Buyout Occur?

Continue reading →

Valuing Shares in a Corporate or LLC Buyout

Published on: December 15, 2023 | By Underwood Law Firm, P.C.

underwood-corporate-llc-buyout-300x300 When business entities become subject to internal dissension, it’s not uncommon for several members to approach the court system and seek to dissolve the entity. Often, this is in the best interest of all involved.

Sometimes, however, the other members, shareholders, or partners, do not want to let the business go. They feel it can continue to operate. As such, they may invoke a special mandatory buyout to keep the business running. The buyout allows those who want the business to continue to purchase the interests or stocks of those who wish to leave.

For LLCs and Partnerships, the buyout price is determined by the same standard: Fair Market Value. Corporations, on the other hand, conduct buyouts based on “Fair Value.” While this difference may seem minimal, they are ultimately quite different from each other.

Continue reading →