Partition Action: Forcing the Sale of Jointly Inherited Property

If a partition action is necessary, you should seek help from a knowledgeable attorney. When an individual who holds real estate solely in his or her name passes away, real estate ownership must pass to the person’s heirs through the probate process. If the person left a will, the real estate and other probate property passes to the beneficiaries of the will after opening an estate and admitting the will for probate. If the person passes away without a will, then Florida laws regarding intestacy determine which surviving family members inherit the person’s assets, including real estate. Inheritance disputes may result from joint ownership of assets, including real estate, which may sometimes make a partition action or forced sale necessary.

A Florida probate attorney at Kramer Green can help you work through opening an estate for your loved one and distributing assets to heirs, including real estate. When disputes arise between heirs regarding the disposition of property, we can evaluate your options and assist in choosing the legal strategy that is most likely to meet your goals. If the partition of real estate becomes necessary, we also can assist with those legal proceedings.

Co-Ownership of Real Estate

One of the most common scenarios in the context of inherited real estate is when siblings jointly inherit real estate from their parents. Siblings who inherit real estate in this manner share joint undivided ownership in the property or as “tenants-in-common.” Each sibling has equal rights to the property, and no barrier or line separates their ownership of the property.

Disposition of Jointly Owned Real Estate

In most cases, the siblings have no problem deciding what to do with the property. For instance, they may sell the property and divide the proceeds of the sale evenly amongst themselves. They may retain the property as an investment property or use it as a vacation home by hiring a property manager and dividing any rental profits and maintenance costs.

However, in some cases, siblings cannot agree on how to handle the property. One sibling may wish to sell the property and get their share of the profits in cash, whereas the other sibling may wish to hold onto the property for sentimental or other reasons. Alternatively, the siblings may agree to sell the property but cannot agree on the essential terms of the sale, such as the price. Even worse, the dispute may become so heated that one spouse may move into the property and not allow the other sibling to enter or real estate professionals to appraise, inspect, or list the property for sale.

Filing a Partition Action in Court

Ultimately, in a dispute over jointly owned real estate, the only option is to file a partition action in court to force a sale of the property. The co-owner who wishes to sell the property or the estate’s personal representative can file a partition action, or a formal adversarial lawsuit, in the probate proceeding under Florida Statutes §733.814 at any time before the estate is closed.

If the estate already has closed and the joint owners cannot agree on the disposition of the real estate, then the co-owner wishing to sell the property cannot file the partition action in probate court. In that case, they must file an independent partition action under Chapter 64 of the Florida Statutes.

A partition action proceeds like any other civil lawsuit under Florida law. The parties exchange discovery requests, and court hearings may occur. In most cases, the parties settle either by agreeing to sell the property to a third party on certain terms or by one party agreeing to buy out the other party’s interest in the property. If the real estate consists of undeveloped land, the parties could also physically divide the tracts of land instead of selling the real estate.
In reaching any settlement, the parties to a partition action must also remember that one or more parties may have paid mortgage payments, property taxes, insurance premiums, or other expenses to maintain the real estate throughout the proceedings. Those parties are entitled to a credit for one-half of those reasonable expenses toward their share of the real estate.

If the parties cannot settle the case, the court will enter a judgment of partition and order that the property be sold. Typically, this sale occurs via public auction or private sale conducted by a court official. Any proceeds from the sale after the costs of the sale are paid would then go to the co-owners in equal shares after considering whether either party paid maintenance expenses for the property during the proceedings.

Look to Kramer Green for Assistance with Your Probate Case

A Florida probate lawyer at Kramer, Green, Zuckerman, Greene & Buchsbaum, P.A. is prepared to represent your interests throughout the probate process. Inheritance disputes may arise when joint ownership of assets, such as real estate, results from probate. These disagreements may become quite complex and emotional. We have the experience needed to guide you through these disputes and work to reach the outcome that you desire. Contact our office today at (954) 966-2112 or online to schedule a time to discuss your probate-related legal issues with our probate attorney.

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