Do You Have to Partition Undivided Property in a Will?

By John Cromwell

Partitioning is a judicial process that divides co-owned real estate among its owners. A will can transfer the decedent’s share of co-owned property or it may establish that certain real estate is to be co-owned by certain beneficiaries. In all of these cases, partitioning the property is generally not required. If there is a conflict among the owners about the property's use, however, or if one owner wants unrestricted ownership over a portion of the real estate, the owners may choose to partition the property.

Partitioning is a judicial process that divides co-owned real estate among its owners. A will can transfer the decedent’s share of co-owned property or it may establish that certain real estate is to be co-owned by certain beneficiaries. In all of these cases, partitioning the property is generally not required. If there is a conflict among the owners about the property's use, however, or if one owner wants unrestricted ownership over a portion of the real estate, the owners may choose to partition the property.

Tenants in Common

A common type of property ownership is tenancy in common. With this type of co-ownership, everyone has an equal share in the property and has the right to use the entire property. A will can also transfer property as a tenancy in common, so that the property is shared among several specified beneficiaries. A person may draft his will this way to ensure that several beneficiaries would be able to use the property. An example of a property that may be passed on as a tenancy in common is a family's summer home.

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Partitioning Tenancy in Common

Generally, a tenant in common may sell her rights to the property without the permission of the other co-owners. This means that at any time a situation might arise in which the co-owners must share the property with someone with whom they do not want to associate. If a co-owner wants to modify the property in any way, he must first obtain the permission of all the other co-owners. Co-owning property with certain people may be difficult because their inflexibility makes it impossible to improve the property. If one of the co-owners would rather own a piece of the property and not have to get permission for any modifications he wants to pursue, he can petition to court to partition.

Right of Survivorship

Another type of co-ownership is joint tenancy. This type of co-ownership is similar to tenancy in common except that it is subject to the "right of survivorship." With survivorship, when one of the co-owners dies, his rights to the property are transferred to the other owners. The deceased co-owner's heirs do not have any rights to the co-owned property. The last living co-owner owns the property outright and can leave it to her heirs. A will can create a joint tenancy with a right of survivorship for property left to heirs. Partitioning ends a joint tenancy, however, and the right of survivorship no longer applies to the property. After partitioning, the co-owners each control a portion of the original property and are able to leave that portion to their heirs.

Partitioning Process

During a partition proceeding, a court will establish the property rights of each owner. A court will generally consider the contributions each owner has made to the property, such as payment for repairs, taxes, maintenance, and improvements. Once each owner's rights are established, the court may either partition in kind or partition by sale. A partition in kind means that the property is divided among the co-owners. A partition by sale means that the property must be sold and the proceeds from the sale are divided among the co-owners. Property is subject to the law of the state where it is located, and the partitioning process will vary among states.

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"In Illinois, What Happens to a Tenancy in Common When There Is a Divorce?"

References

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