Legal Question in Real Estate Law in California

Re: partition in probate matter

I have not been involved in a partition case, but it appears to be very similar to a divorce. In those cases the family home is always sold. The only Question is who will be the buyer. You and those who do not want to sell the property should offer to buy her out. This would be a good time to buy out the unhappy sister. As a part of the purchase price request that there be an accounting of all that each party have received, as to the estate. Consulting with an attorney would be prudent as it appears the amount involved is significant.

Re: partition in probate matter

OK, I guess my first question here is why an heir to part interests in numerous properties, who says he doesn't need the cash from partition sales, would be asking this question on LawGuru instead of consulting his own well-paid lawyer. No harm in doing so; we're a great value, but LawGuru is more accustomed to falling more into a Legal Aid kind of role.

Anyway, as you seem to know and acknowledge, partition is a right of a co-owner who doesn't want to remain in co-ownership, for whatever reason. If your sister is competently represented, she will probably prevail in her effort to force a partition by sale. Essentially, what I'm saying is that the answer to your Question #1 is YES, she can (probably) force a sale.

Where I may part company with your analysis is that the result will necessarily be unfair. During the process of litigation of a partition suit, you would have opportunity to raise all your fairness issues, possibly requiring a cross-complaint to be sure, and the outcome should be on balance fair and equitable if you are competently and aggressively represented.

As to "common benefits" that would result in a court apportioning fees and costs, or some of them, among the litigants, I'd say from my experience that courts tend to apportion little and to make each side bear its own costs, fees and expenses. However, the "common benefit" rule is part of the partition law and undoubtedly in most complex cases, including those involving multiple properties, there will be significant "common benefit" costs and fees that the court will apportion.

Your question 3 is also difficult to impossible to answer prospectively, except to say, probably not very much will be apportioned across the table - you will likely bear most of the fees and costs you contract for, and she will likely bear most of the costs she incurs. Most likely excpetions would be appraisals and things like that which benefit the joint effort to sell for the best possible price, as opposed to costs and fees incurred by a party to sharpen its knives and dry its powder in anticipation of filleting or shooting up the other side.

I think the best approach here is not out-and-out opposition to the proposed partition suit, because partition is easy to obtain and very hard to defend. Instead, I would advise taking an early posture to getting the future sale of the properties agreed-upon (by an in-court or out-of-court but court-enforceable deal), and with terms that are negotiated so as to give you the best possible outcome. Reducing the time and cost of the litigation that seems inevitable is quite important to optimizing your result. You have to realize that you are unlikely to have your way entirely, or even largely, here. You can, however, expect a fair shake as to recognition of the advance payments made your sister, as well as the method and timing of partition sales. Please contact me directly for some further commentary.

Re: partition in probate matter

You need to agressively oppose her petition. Contact me directly.