Partition Action – How We Ended Co-ownership with a Deceased Person (part one).

Sometimes you just can’t continue to co-own property with certain individuals. It’s similar to getting a divorce, but you may hardly know the person you’re “divorcing.”

I recently participated in a partition action on a ranch which I own approximately a twenty percent interest. As the petitioners my partners and I named the other co-owners in the suit and away we went.

My partners were my brother and my dad, while all the other owners became defendants. There were eight defendants, who owned an interest in one or more of ten parcels of land. We didn’t even know who all the owners were when we started. In fact, the suit is over and we still aren’t sure who all the owners are, or should I say were.

Here’s why. The defendants included two people who were deceased and when the suit started we didn’t know one of them was on title or that the other had died intestate and married to a wife we didn’t know existed. His estate had never been probated.

Due to administrate errors, one of the deceased owners was still on title long after his heirs thought his affairs had been wrapped up. Because title was not properly conveyed from the deceased to his trust, the trust could not successfully transfer title to the daughter, so when the daughter attempted to convey title to the new owner, the title company caught the glitch. She couldn’t convey because the chain of title had been broken.

Ironically this case could have ended when the title company offered to provide title insurance even though title was obviously flawed. As the future owners of the property in question, we were not willing to take the risk that this obvious flaw in the chain of title would not come back to haunt us at some time in the future so we declined accept the title insurance option and required that the flaw be corrected.

The way to correct the flaw is to ask the court to probate the property which had not been properly conveyed. This is a minor court action which will take some time, a probate appraisal and cost of few dollars in attorney’s fees, but when we’re done, we won’t have to worry about anybody challenging the validity of how we received title. As far as we’re concerned, this “clean up” issue can take place after the suit is over, so long as all the parties agree that it must be done and it is so stated in the final judgment.

The second deceased person was not so easy to deal with. I’ll tell you about that one in part two.

2 thoughts on “Partition Action – How We Ended Co-ownership with a Deceased Person (part one).

  1. In reading about the problems that you encountered in your partition action, I was thinking that they could have been avoided or at least known and addressed at the out set if your counsel would have conducted a thorough title search. I would think that this would be required in order to identify all persons having an interest in the real estate so those persons could properly be named as defendants in the partition action.

  2. David: We had a title report and our council was very careful to identify all owners. However, there is always the possibility that other’s may claim an interest. That’s why the suit named about ten John Does who could be replaced by real people if they claimed an interest.

    The title report named the heirs of the deceased person as having an interest in the ranch. However we were not sure who the heirs were. In the end we determined that he died intestate, but married. We served his widow thinking that she would be the owner.

    In the end she defaulted and the interest became unclaimed. We then initiated a interpleader action where the court advertised for people who claimed to be the heirs of the deceased co-owner. So far, the father of the deceased owner is the only person claiming to be an heir. The interpleder action is ongoing.

    We hope to be reimbursed for our legal expenses as we were the ones who paid for the legal work related to this action.

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