California Code of Civil Procedure 872.530 is the California partition statute that outlines how to file a partition action against a co-owner who is deceased or believed to be deceased. The statute further describes what should be done if a deceased party’s personal representative is known or unknown as follows:
(a) If a person described in Section 872.510 is dead and the plaintiff knows of a personal representative, the plaintiff shall join such personal representative as a defendant.
(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.California Code of Civil Procedure 872.530
This statute references Code of Civil Procedure § 872.510, which provides 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.”
The statute does not clarify what is to occur when there is a vacancy in the office of a trustee of a trust holding a fractional interest in property. However, California Probate Code § 15644 provides that: “When a vacancy has occurred in the office of trustee, the former trustee who holds property of the trust shall deliver the trust property to the successor trustee or a person appointed by the court to receive the property and remains responsible for the trust property until it is delivered.” Seemingly, the former trustee can still be named as a party in the partition case until actions are taken to appoint a successor trustee.
Rutter explains the issue as follows: “If a person who should be joined is known to be dead, the plaintiff must join the decedent’s known personal representative as a defendant. (C.C.P. 872.530(a).) If none is known, the plaintiff must so state in an affidavit and join the decedent’s testate and intestate successors and all persons claiming by, through, or under the decedent. (C.C.P. 872.530(b)(1), (b)(2).) A similar procedure is required if the putative defendant is simply believed by plaintiff to be dead. (C.C.P. 872.530(b)(3).) These provisions are derived from C.C.P. 1250.220(b), which governs eminent domain. (Legislative Com. Comment; see 8 Summary (11th), Constitutional Law, § 1340.)” 12 Witkin, Summary 11th Real Prop (2023) § 66.
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