Detailed Answer: How to pursue a partition action or petition for sale of inherited real estate in California when some heirs are minors

This article explains, in plain language, how to file a partition action or ask a court to sell inherited real estate in California when some co-owners/heirs are minors. It describes the legal steps, how minors must be represented, alternatives, likely timelines, and what documents you will need. This is educational information only and not legal advice.

What is a partition action and when is it used?

A partition action is a civil lawsuit that asks the superior court to divide or sell real property owned by two or more people. In California, partition claims are governed by the Code of Civil Procedure; see Cal. Code Civ. Proc. § 872.010 et seq.. If the court finds the property cannot be physically divided without prejudice to the owners, it may order a sale and a division of proceeds; see Cal. Code Civ. Proc. § 873.010.

How the involvement of minors changes the process

Minors cannot represent themselves in civil litigation. California courts require minors’ interests to be protected by an appropriate adult or counsel. That protection commonly occurs in one of two ways:

Appointment of a guardian ad litem by the court in the partition action to represent the minor’s interests in that lawsuit (see generally Cal. Code Civ. Proc. § 372 for appointment of guardians ad litem).
Appointment of a guardian of the minor’s estate in probate court who can act on the minor’s behalf for property matters and may participate in or approve settlement/sale of the minor’s interest.

Which route to use depends on the facts: whether the minor already has a guardian of the estate, whether the parties want a court-supervised sale under probate rules, and whether a single, short-term representative for the lawsuit (guardian ad litem) is sufficient.

Step-by-step: filing a partition action when some heirs are minors

Confirm ownership and shares. Start by collecting title documents, death certificate, will/trust (if any), preliminary title report, and recorded deeds. If the decedent died without probate, determine heirs under intestate succession or whether probate is needed to identify and transfer title before a partition can proceed.
Decide whether to open probate (if not already done). If the real estate title remains in the decedent’s name, you may need to open probate (or a limited proceeding) to clear title and to establish who legally owns the property before a partition action. Probate court can also supervise sale or guardian appointments.
Prepare and file the partition complaint. In superior court (county where the property lies), file a complaint for partition. The complaint should include a legal description of the property, the names and addresses of all co-owners/heirs (identify which are minors), and the requested relief (partition in kind or sale and division of proceeds).
Serve all parties and protect minors’ rights. Serve the complaint on all parties. For minors, serve their parent or legal guardian, and advise the court the parties include minors. The court will require representation for each minor—either an existing guardian of the estate or a guardian ad litem appointed in the partition action.
Ask the court to appoint a guardian ad litem (if needed). If no guardian of the estate exists, file a motion in the partition case asking the court to appoint a guardian ad litem to represent the minor(s). The court may appoint a parent, relative, or an attorney to serve in that role.
Investigation and valuation. The court often appoints a referee or commissioner to value the property, take evidence, and recommend whether partition in kind is practical. The court may order a sale if division in kind would prejudice the owners (see Cal. Code Civ. Proc. § 873.010).
Sale process and distribution. If the court orders a sale, the clerk or a court-appointed officer typically conducts the sale (public auction or private sale under court approval). After paying liens and court-allowed costs, the net proceeds are divided according to each owner’s legal share. Minors’ proceeds will be handled according to guardianship/probate protections (for example, the court may require funds to be deposited in a blocked or supervised account, or the probate court may direct management of the funds).

Alternatives to a civil partition action

Before or instead of a partition lawsuit, consider these options:

Consent sale: All owners (or guardians) agree to sell the property and split proceeds. If a minor is involved, the sale and distribution will typically need court approval or guardian approval under probate rules.
Buyout: One or more co-owners buy the minor’s interest. If the minor has no guardian of the estate, buyout typically occurs through a guardianship petition or a guardian ad litem agreeing and the court approving the transaction.
Probate sale: If the estate is in probate, the personal representative can sell property under probate supervision. The probate court’s sale can protect minor heirs’ interests and may be more straightforward in some cases.

Protections specific to minors

Court appointment: The court will not allow a sale or settlement that injures a minor’s interest without appropriate oversight — usually a guardian ad litem or a guardian of the estate.
Approval requirements: Sales or compromises affecting a minor’s property may require separate court approval (either in the partition action or in probate) to ensure the transaction is fair.
Handling proceeds: The court commonly supervises how sale proceeds for minors are held or invested. Money might be placed in a blocked account, invested under court supervision, or turned over to a guardian of the estate.

Practical documents and information to gather

Recorded deed and legal description of the property
Preliminary title report and any liens or mortgages
Death certificate and decedent’s will or trust (if any)
Birth certificates for minor heirs and IDs for adult heirs
Probate case numbers or guardianship documents (if already opened)
Estimated property value / recent appraisal

Likely timeline and costs

A contested partition action often takes many months to a year (or longer) depending on valuation, discovery, and whether the court orders a sale. Costs include court filing fees, attorney fees, appraisal and title costs, referee/commissioner fees, and sale costs. If the property is sold, sale costs and unpaid liens are paid first; remaining proceeds are divided among owners.

When to consult a lawyer and what to ask

You should consult an attorney if the property value is significant, ownership is disputed, minors are involved, or you anticipate disputes among heirs. Ask potential attorneys:

Do you have experience with partition actions and cases involving minors?
Will you coordinate with probate counsel if a guardianship or probate action is needed?
What are the likely costs and timetable in my county?
Are there alternatives to litigation (consent sale, buyout, probate sale)?

Key California legal references

Partition actions: Cal. Code Civ. Proc. § 872.010 and related sections (partition statutes).
When the court may order sale: Cal. Code Civ. Proc. § 873.010.
Guardian ad litem appointment (civil actions): Cal. Code Civ. Proc. § 372 (procedure for appointment in civil cases).
Probate Code and guardianship rules: see the California Probate Code (Division on guardianships and estates) for protections governing minors’ property and guardians of the estate: California Probate Code.

Helpful Hints

Start by checking title: If title still lists the decedent, you may first need to open probate before filing a partition action.
Identify whether a guardian of the estate already exists for any minor. If yes, that guardian may represent the minor in the partition case.
Communicate with co-owners early. A consensual sale or buyout avoids litigation costs and reduces delay when minors are involved.
Expect the court to require extra safeguards for minors’ proceeds — plan for funds to be blocked or supervised.
Consider a valuation early. A current appraisal prevents delays and reduces disputes over whether to divide in kind or sell.
When in doubt, consult both a probate attorney (for guardianship/probate questions) and a real property attorney (for partition/sale strategy).

Disclaimer

This article is for general informational purposes and does not constitute legal advice. It does not create an attorney-client relationship. Laws change and every situation is different. For advice about your specific facts, contact a licensed California attorney who handles probate, guardianship, or partition actions.