WHAT TO KNOW ABOUT PROPERTY PARTITION LAWSUITS IN SACRAMENTO

Real Estate litigation attorneys in Sacramento may be able to help you with something called a “partition lawsuit” when co-owners of real property can’t agree between themselves on how to divide up ownership interests.

What Is A Partition Lawsuit?

Let’s say that you and your sibling inherit a property from a parent. Or let’s say there are two or more business partners who jointly own a commercial building. Such co-owners are called “tenants-in-common.” If one of the common tenants decides to unwind or sell their interest, and if the other co-owner(s) cannot agree, either on a price or to sell at all, a partition lawsuit is how such disputes are handled.

For properties in Sacramento County, partition actions are always filed in Superior Court, and a real estate attorney will almost certainly be required. This is not the kind of case that a lay person should ever consider taking on themselves. The guiding law in these actions is California Civil Code, Civil Procedure – CCP § 872.010.

What If One Owner Is Damaging The Property?

Even before a partition lawsuit is filed, which is a process that can take a while, there are circumstances where one owner of a property may be justifiably worried that another owner will do damage to a property, possibly through neglect or mismanagement. In that case, you’ll need an attorney who can file a lawsuit in Sacramento Superior Court to seek a restraining order or an injunction. At the same time, a notice should be posted called a ‘lis pendens’ which is a public record of a pending lawsuit. Such a legal action will immediately block any transfer of title.

What are the Steps In a Partition Lawsuit?

A Partition Complaint, which is the first step in a lawsuit, will specify such things as the legal description of the property, the plaintiff’s claim(s) to the property, all parties who may have an interest in the property, and what kind of ‘relief’ or resolution is requested of the Court. The Superior Court will decide if a partition action is allowed, and if how the property may be divided. A trial may or may not be needed – it will depend on the facts of the case, and whether the parties do or do not accept the basic facts. Thereafter, a Judge will typically appoint a Partition Referee to divide up or sell the property. While the referee is appointed by a Judge, all the parties to the action are responsible for paying the referee’s hourly rate.

What Does a Partition Referee Do?

Depending on whether we’re talking about land, a commercial building, a house, or an apartment building, the partition referee usually has wide latitude to make decisions that he or she believes are equitable and efficient. The referee can order a public or private sale of the property, or may divide it up according to ownership percentages, again depending on what type of property is being contested. Ultimately, whatever the referee decides must be approved by the Court, so the decision isn’t unilateral.

Because the Partition Referee plays such an important role, the person chosen for the job must have extensive experience both in real estate as well as in all facets of building and construction. I have been called upon many times to serve as a Partition Referee, not only because I have been a broker and realtor for many years, but also because of my wide-ranging construction experiences, and my work as a Court-Appointed Receiver. That skill set, though hard to find, is the trifecta that is most useful to find in a Partition Referee!

If you want to learn more about Partition Actions and Partition Referees, please feel free to call me at (916) 215-2042.

Wine Country Fire Issues with Trust Litigation Attorney Michael Hackard | Fiduciary Broker Vlog

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Today I’m interviewing trust litigation attorney Michael Hackard, where we discuss the fires in the Sonoma and Napa Counties, what to do if you’ve lost your will, and much more. Please enjoy this episode!

Down to the Basics – Fiduciary Broker Vlog #8

 

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What exactly is Probate and what exactly is an Executor or an Administrator of a Probate? What are the obligations of person responsible to discharge a probate?

Hi, I’m Dan Collins – a Sacramento, California licensed real estate broker with expertise in real property matters involving Probates and Trusts. I am also a California licensed general contractor and I act as court appointed receiver administrator for the Superior Court.  If you have found yourself tasked with being an Executor administering a Probate or a Trustee in an estate, I can help you effectively execute your duties that attorneys do not help you with. To learn more, please visit my website: probate-realtor.biz

Today I want to get down to the basics and answer some of the most common, but not necessarily simple, questions that I get asked about. What is probate?  What does an Executor or an Administrator of Probate do?

Probate starts at the end – namely the end of someone’s life.  The first order of business is when a family reads the will, and the named Executor in the will needs to file Probate with the local court.

If a person dies without a will the court will appoint an Administrator for the estate. Depending on the jurisdiction the court may be involved, and an attorney may be required for each step of the process.

Administering Probates comes with real liabilities and it is both reasonable and recommended that the person who is tasked with administering the estate to hire probe qualified legal counsel that can be paid from the estate.

The Executor, or Administrator, is responsible to produce specific documents. These required documents include a death certificate, list of assets, list of liabilities and a list of heirs.  All of these must be produced and submitted to the court.

A detailed list of Liabilities, Administration costs, and taxes must also be collected before distribution by the executor who administers the probate. The court will provide instructions to the Executor to help guide them through how and when to distribute assets to the heirs.

Most family members will likely deal with a probate situation at least once in their lives. To put some perspective on probates, let me share a few facts with you:

  1. Less than 5% of Americans avoid probate using a revocable trust or other method, so that leaves 95% of estates to be probated. 2,467,143 estates were subject to probate in 2013, which is the most recent numbers available.
  2. The average US inheritance is $176,814.
  3. That’s $436 Billion worth of estates Probated in 2013 alone!
  4. 78.8% of people 65 and older own real estate.
  5. That’s 1,973,714 properties that transfer through probate annually.
  6. 67% of real estate in Probate is owned free and clear.
  7. That’s roughly 1.3 million properties with no debt.

It is vitally important to deal with competent people to assist you in administering probate if you are called upon to serve as a probate executor or an administrator.  In some of my next videos, I’ll share with you some of the common pitfalls that executors and administrators encounter – and especially how to avoid them!

My name is Dan Collins, I act as a “fiduciary broker” in probates and trusts that involve real property assets.  To learn more, please visit my website: probte-realtor.biz

Thank you for joining me today.

Worst Case Scenario!! – Fiduciary Broker Vlog #7

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How is an estate Administrator to deal with a Probate involving catastrophic loss?

Hi, I’m Dan Collins – a California licensed real estate broker serving Napa and Sonoma Counties with expertise in real property matters involving Probates and Trusts. I am also a California licensed general contractor.  If you have found yourself tasked with being an Executor administering a Probate that has been involved in a catastrophic loss event, I can help you effectively execute your duties that attorneys do not help you with. To learn more, please visit my website: probate-realtor.biz

Today’s video is called “Worst Case Scenario”.  What do you do if you find yourself as a Probate personal representative when the estate has incurred a catastrophic loss?  And, what to do when the catastrophic event also results in the deceased’s last will being lost?  I was inspired to address this topic of estates involved in catastrophic loss events from last month’s wine country fires in Napa and Sonoma counties that destroyed over 8,400 structures and reportedly killed 42 people.

If you have been named as a personal Representative of a Probate for a deceased’s estate from the California wine country which suffered a catastrophic loss; whether that person died just before, during or, as a victim of the fire, you have a far more complex task than would occur in administering an estate where the assets were undamaged and the last will was intact and available to file with the Court.

Missing wills raise all sorts of interesting legal issues which often turn on the specific facts and circumstances. If a will was lost in a wildfire, the Personal Representative may have the option of submitting a photo or scanned copy of a will to be admitted for probate.  What happens if there is no photo or scanned copy?  If the only copies were destroyed in a fire?

Those questions are matters of law, and I am not an attorney.  But I will be interviewing attorney Mike Hackard of Hackard Law this week to discuss the subject of lost wills in the 2017 wine country wildfires, so we can explore the practical and legal details in greater depth.

Generally, the insurance on your residence will pay toward repairing or replacing your home in case of damage from a covered peril such as fire. The contents of your house should also be covered in case of damage or loss from fire. However, some perils may not be covered. For example, flood damage may not be covered if your house is in a floodplain. But fire is generally a covered loss.

Even if a catastrophic loss is covered, that doesn’t mean that becoming whole again will be simple or easy.  As a California licensed general contractor, I am conversant about the potential challenges of processing insured loss claims when there are catastrophic events. The reason is because I was involved in construction projects after both the 1989 Loma Prieto earthquake and the Oakland fire storm of 1991. Based on my experience, what is likely to happen in Napa and Sonoma is that the demand for construction materials and labor to  replace over 8,000 structures in such a small geographic area will surely result in inflated costs.  And that means Personal Representatives who are charged with administering a probate in the affected areas of Napa and Sonoma wine country will likely be at a great disadvantage.  (As an aside, that is especially true if they do not reside near the county where they are tasked with administering the probate.)  If a Representative or Administrator is not knowledgeable in the areas of law, insurance or construction, the chances of receiving equitable treatment are very low.  I would not advise going down this road alone.  You will need qualified and expert assistance.

There are a lot of nuances to the law and quite a lot to unpack here.  If you want to know more about what to do in a worst-case scenario when you’re the administrator of an estate involving a catastrophic loss, please join me in this week’s podcast with trust litigator Mike Hackard of Hackard Law where we will discuss in great detail the areas of equitable treatment for estate administrators in the affected areas of the Napa and Sonoma wine country wildfires.

My name is Dan Collins, I act as a “fiduciary broker” in probates and trusts that involve real property assets.  To learn more, please visit my website: probte-realtor.biz