Californians with a deceased co-owner can force the sale of the property without going through probate by filing a partition action. In California, the court can proceed with the partition by joining the deceased co-owner’s representative or successor, or simply their estate if their is no representative. This ensures that the property can be sold or divided without unnecessary delay. However, handling the deceased owner’s interest requires following specific legal procedures to protect all parties’ rights and ensure a fair distribution of proceeds.
Talkov Law Partition Attorneys has extensive experience managing partition actions involving deceased co-owners, guiding clients through the process to secure the best possible outcome.
Joining a Deceased Co-Owner or Estate in a Partition Action
When a co-owner passes away, California law allows the deceased co-owner’s interest to be joined in a partition action without waiting for probate under California Code of Civil Procedure § 872.510 to CCP § 872.530.
These sections permit the substitution of a deceased co-owner’s successor or representative directly into the partition action, ensuring that the case can proceed without unnecessary delays. Additionally, CCP § 377.31 to CCP § 377.32 authorizes the court to substitute the decedent’s successor in any pending action, including partition cases, so that the property can be sold or divided without waiting for the completion of probate. This is particularly valuable if there has been no probate filed for the deceased co-owner, and thus no one else to sign on a deed to sell the property.
How to Join a Deceased Co-Owner’s Estate in a Partition Action
- Identify if there is a Personal Representative – If the deceased co-owner has an executor or administrator, they must be joined as a defendant in the action. If no representative exists, the plaintiff can file an affidavit that the co-owner is deceased or believed to be deceased.
- Substitute the Deceased Party – If a co-owner dies mid-case, the court will substitute the deceased owner’s successor, who must file an affidavit to prove their status.
- Proceed with the Sale – The court can adjudicate and sell the property, with the deceased owner’s share going to their estate or heirs.
Key Insight: The action does not abate due to a co-owner’s death. The court substitutes the successor to ensure continuity of the case and efficient resolution.
Strategies to Expedite Sale Approval and Closing
Handling partition sales when a co-owner is deceased can go quickly with a skilled partition attorney. To minimize hold-ups and secure an insurable title, attorneys and courts can use several strategies to expedite the sale and closing process:
1. Waive Appeal Rights
Title companies may require a waiver of appeal from all parties to clear title immediately. Some courts may deem that the appeal rights arise from the earlier interlocutory judgment such that the later sale order is not subject to appeal, thereby allowing escrow to close without delay.
2. Expedite Confirmation Hearing
After a partition referee accepts an offer, a motion to confirm the sale is filed with at least 10 days’ notice to all parties. Speeding up this step can involve applying for an order shortening time or, if parties agree, requesting that the court confirm the sale ex parte.
3. Utilize Private Sales to Avoid Overbids
To streamline the process, choose the more common method of a private sale through a broker rather than a public auction. Private sales that are well-marketed and sold at fair market value reduce the chance of overbids and ensure quick confirmation by the court.
4. Settle Early and Voluntarily
Whenever possible, negotiate a voluntary sale among co-owners, including personal representatives, to avoid the formal partition process. This is the fastest way to resolve disputes, allowing parties to reach a mutually beneficial agreement and bypass the appeals process.
5. Use Experienced Referees
Assuming there is no personal representative, a settlement is not possible such that the court process will be required. Choosing a knowledgeable and efficient partition referee can significantly reduce delays. An experienced referee will pre-plan the sale process, list the property promptly, and shorten marketing and escrow periods to secure a quicker closing.
Handling Partition Sale Proceeds for a Missing or Deceased Co-Owner
After the property is sold, distributing proceeds when a co-owner is deceased or missing requires special handling to protect the estate and satisfy legal requirements.
Option 1: Deposit the Funds with the Court (Court Registry)
Depositing sale proceeds with the Superior Court ensures that funds are protected and lawfully held. The court will retain the funds until the rightful heir or successor makes a claim. This approach is often favored for simplicity and security.
Option 2: Transfer Unclaimed Proceeds to the State Controller (Unclaimed Property Fund)
If a deceased or missing owner’s share remains unclaimed for an extended period, the funds may be transferred to the State Controller’s Unclaimed Property Fund. This process ensures that the money is held in trust for the rightful owner or heir.
Option 3: Appoint a Legal Representative
A court-appointed fiduciary, such as an executor or administrator, can be responsible for managing the proceeds. This option ensures that the deceased co-owner’s financial interests are properly handled and any claims from heirs are managed lawfully. If you are not a beneficiary under the estate of the deceased, there is little reason to go through this additional probate process.
Expert Guidance for Partition Actions Involving Deceased Co-Owners
Navigating a partition action when a co-owner is deceased or missing requires experienced legal representation to minimize risks and avoid delays. At Talkov Law Partition Attorneys, we guide clients through every stage of the process, from joining the deceased’s estate to ensuring proper distribution of sale proceeds.
Why Choose Talkov Law?
- We have handled over 450 partition cases statewide, making us the leading partition law firm in California.
- Our attorneys are dedicated exclusively to high-value partition actions, bringing unmatched expertise to complex cases.
- We navigate probate issues, title challenges, and creditor claims to secure your fair share of the proceeds.
- We develop strategic solutions to minimize delays, ensuring that the partition process moves forward efficiently.
Don’t let a co-owner’s death complicate your right to partition property. Get the expert guidance you need by calling (844) 4-TALKOV today for a free consultation.
