California Probate Code § 9823 is the California partition statute that addresses the relation between partition actions and probate matters. The statute provides that:
(a) If the decedent leaves an undivided interest in any property, an action for partition of the property may be brought against the personal representative.
(b) The personal representative may bring an action against the other cotenants for partition of any property in which the decedent left an undivided interest.
California Probate Code Section 9823
Probate Code Section 9823(a) thus allows a partition action against a personal representative of a decedent’s estate, which dovetails with Code of Civil Procedure § 872.530 allowing personal representatives to be named in partition actions.
In turn, Probate Code Section 9823(b) allows a personal representative to file a partition complaint against the other co-owners of property owned by the decedent.
In 2023, the Court Appeal rejected the contention that: “Because Leslie filed her complaint in the probate action, pursuant to sections 855 and 9823, subdivision (b), she contended that she was allowed to proceed without an attorney.” Estate of Sanchez (2023) 95 Cal.App.5th 331, 337. Rather, it founds that an executor must retain counsel to avoid a finding of practicing law without a license.
Law Revision Commission Comments to California Probate Code § 9823
In 1990, the California Legislative Committee explained California Probate Code § 9823 as follows:
Section 9823 continues Section 9823 of the repealed Probate Code without change. This section is a specific example of the general authority given the personal representative by Section 9820.
The personal representative is required to exercise the power granted by Section 9823 to the extent that ordinary care and diligence require that the power be exercised and may not exercise the power to the extent that ordinary care and diligence require that the power not be exercised. See Section 9600(b). As to the effect of court authorization or approval, see Section 7250.
When a partition action is brought against the personal representative, the rules of venue for partition actions generally apply. See Code Civ.Proc. § 872.110.
Under subdivision (b), court authorization is not required for the personal representative to commence a partition action. See Section 9610. This continues prior law. See Review of Selected 1969 Code Legislation 187 (Cal.Cont.Ed.Bar 1969).
The personal representative and third party may agree to use a summary procedure for determination of a dispute. See Sections 9620 (submission to temporary judge), 9621 (submission to arbitration).
As to orders made, or actions taken, before July 1, 1988, and matters pending on July 1, 1988, see Section 9645. As to the application of any amendments made after that date, see Section 3.
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