Affidavit re: Death of Co-Owner [Sample]
Co-owning real estate in California comes with many different challenges. If you’re ready to sell but your co-owner refuses, a partition action is the only court-ordered way to force the sale of property.
Litigants in partition actions may find themselves in the unfortunate situation of having to declare that another party in the partition action has since passed away. Alternatively, they may simply want to file an action even though one of the co-owners has passed away. When there is no known personal representative, an affidavit of death of co-owner may be an appropriate next step.
Affidavit Required Under California Code of Civil Procedure 872.530(b)
If a person described in Section 872.510 is dead, or is believed by the plaintiff to be dead, and the plaintiff knows of no personal representative:
(1) The plaintiff shall state these facts in an affidavit filed with the complaint.
(2) Where it is stated in the affidavit that such person is dead, the plaintiff may join as defendants “the testate and intestate successors of __________ (naming such deceased person), deceased, and all persons claiming by, through, or under said decedent,” naming them in that manner.
(3) Where it is stated in the affidavit that such person is believed to be dead, the plaintiff may join such person as a defendant, and he may also join “the testate and intestate successors of __________ (naming such person) believed to be deceased, and all persons claiming by, through, or under such person,” naming them in that manner.
Can I File an Affidavit of Death of Co-Owner Without a Lawyer?
Parties are free to file an affidavit re death of co-owner without an attorney, but there may be severe consequences if done incorrectly. The experienced partition attorneys at Talkov Law highly recommend speaking to an attorney beforehand to ensure that all statutory requirements have been met and you are getting the best possible outcome.
California Affidavit of Death of Co-Owner
Below is a template of an affidavit of death of co-owner in a California partition action that is intended to be used in consultation with a real estate attorney.
***Please be aware that this form is for use in consultation with a real estate attorney. Attempting to represent yourself in pro per is a risk, and we highly advise working with a knowledgeable attorney. An experienced partition attorney will likely produce a more favorable outcome for you in your partition action.***
Notice: Please contact a partition action lawyer in California at Talkov Law Corp. at (844) 4-TALKOV for to advise you of your rights upon an assessment of the facts in your case before using this template.
[Name or Name and Bar Number]
[Attorney for Plaintiff or Plaintiff In Pro Per]
SUPERIOR COURT OF THE STATE OF CALIFORNIA
|[Name of Plaintiff(s)] Plaintiffs, v. [Name of Defendants], and Does 1-10, Inclusive, Defendants.||CASE NO. AFFIDAVIT OF [PLAINTIFF] RE: DECEASED CO-OWNER [DEFENDANT] IN SUPPORT OF VERIFIED COMPLAINT FOR PARTITION OF REAL PROPERTY [Code Civ. Proc. §872.530] (Filed concurrently with Verified Complaint for Partition of Real Property)|
AFFIDAVIT OF [PLAINTIFF]
I, [Plaintiff], declare:
- I am the Plaintiff in the instant case. I am over the age of 18. The facts set forth herein are of my own personal knowledge and if sworn I could and would testify competently thereto.
- the real property located at [Address], Assessor’s Parcel Number [APN] (“Property”).
- Code of Civil Procedure 872.510 requires that: “The plaintiff shall join as defendants in the action all persons having or claiming interests of record or actually known to the plaintiff or reasonably apparent from an inspection of the property, in the estate as to which partition is sought.”
- In turn, Code of Civil Procedure 872.530(b) provides that: “If a person described in Section 872.510 is dead, or is believed by the plaintiff to be dead, and the plaintiff knows of no personal representative: (1) The plaintiff shall state these facts in an affidavit filed with the complaint. (2) Where it is stated in the affidavit that such person is dead, the plaintiff may join as defendants ‘the testate and intestate successors of __________ (naming such deceased person), deceased, and all persons claiming by, through, or under said decedent,’ naming them in that manner.”
- My review of the title history on the Property reflects that an interest therein is owned by [Decedent’s Name].
- [Decedent’s Name] passed away on or about [Date of Death]. [If Available: Attached hereto as Exhibit 1 is a true and correct copy of the death certificate.]
- I am not aware of any personal representative of the estate of [Decedent’s Name]]. Attached hereto as Exhibit 2 are true and correct copies of my searches of the websites for Superior Court in [County].
- As such, I have designated as a defendant in the complaint “the testate and intestate successors of [Decedent’s Name]], deceased, and all persons claiming by, through, or under said decedent.”
I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct.
Executed on [Date], at [County Where Attorney or Plaintiff in Pro Per is Located] County, California.
[Attorney for Plaintiff or Plaintiff in Pro Per]
Sample Affidavit of Death of Co-Owner in California Partition Action [Draft]
As a courtesy, we are providing this affidavit of death of co-owner in Microsoft Word format for use only in consultation with or when represented by an attorney. Click here for a Word format Affidavit of Death of Co-Owner.
Notice: Please contact an attorney to advise you of your rights upon an assessment of the facts in your case before using this template because the ramifications can be significant if you do not properly assert your rights in a California partition action.
Talkov Law's Partition Attorneys Can Help
If you want to end your co-ownership relationship, but your co-owner won’t agree, a partition action is your only option. With six, full time partition lawyers, Talkov Law is the #1 partition law firm in California and has handled 250 partition actions throughout California. Every case has resulted in a sale to either a third party or one of the co-owners. Not a single court has denied our clients the right to partition or declared our client to be a non-owner. Plus, for qualified cases, there is no fee until we settle or win your case!