FAQ: Including heirs of a deceased sibling in a California partition action

Short answer: Yes — if your deceased sibling owned a share of the property at issue, that ownership interest passes to the sibling’s heirs (or to the decedent’s estate) and those heirs are proper parties to a partition action. To add them you must identify who the heirs are, amend the pleadings or move to substitute parties, and serve the heirs (or the estate’s personal representative) according to California court rules. If heirs are unknown or cannot be found, the court provides methods (including service by publication) to allow the case to proceed.

Detailed answer — how this works under California law

Partition actions in California resolve how co-owners divide or sell real property. When one co-owner dies, that person’s interest does not automatically disappear. The interest typically passes to the decedent’s heirs under the Probate Code or to a devisee under a will. Anyone who holds a legal interest in the parcel at the time of filing is a necessary party to a partition action.

Key legal points:

• Who replaces the deceased co-owner? If the decedent died testate (with a will), the devisee or the estate’s personal representative may be the appropriate party. If the decedent died intestate (without a will), the decedent’s heirs inherit according to California’s intestate succession rules (see California Probate Code § 6400 et seq.). For a summary of the intestate succession rules, see: Cal. Probate Code § 6400.
• Partition statute framework. Partition procedure and who may be joined in a partition action are governed by the California Code of Civil Procedure on actions for partition. Courts require that all persons with an ownership interest be joined so the court can fairly divide or order sale and distribution of proceeds. (See the California Code of Civil Procedure provisions on partition actions for statutory procedure and remedies: for example, see: Cal. Code Civ. Proc., Part 2, Title 7.)

Practical steps to add heirs to a partition action

1. Check title and the decedent’s estate status. Start by reviewing the deed and county recorder records to confirm the decedent’s ownership interest. Check whether a probate case has been opened. Probate records identify the personal representative and, often, the heirs.
2. Determine who the heirs are. If there is a will, the will or the probate file shows who receives the decedent’s interest. If there is no probate, use the intestate succession rules to determine likely heirs (spouse, children, parents, siblings, etc.). You can cite Probate Code § 6400 as a starting point for intestate succession rules.
3. Locate and identify the proper party to name. If an estate administration (probate) is open, name the personal representative in the partition complaint. If no probate exists, name the heirs individually (or their guardians/representatives if minors or incapacitated). If heirs are unknown or cannot be located, the complaint can describe unknown heirs and ask the court for permission to use alternative service methods.
4. Amend the complaint or file a motion to substitute parties. Add the heirs by amending your complaint or by filing a motion to substitute parties and obtain the court’s permission if the case is already pending. The amended pleading should allege the basis for each heir’s interest (e.g., “decedent died on X date and left heirs A, B, and C who now own decedent’s undivided 1/3 interest”).
5. Serve the new parties properly. Serve each heir or the personal representative following California service rules. If a named heir is a minor or lacks capacity, you must seek appointment of a guardian ad litem or name the minor’s guardian when you add them. If an heir’s location is unknown after reasonable efforts, ask the court for leave to serve by publication or other substituted service.
6. Consider opening probate if title is unclear. If the decedent’s ownership or identity of heirs is in doubt, opening a limited probate can be a practical step. Probate can clarify who has legal authority to represent the decedent’s interest and simplify joinder.
7. Prepare for potential complications. Expect issues such as competing claims, unborn or unascertained heirs, and liens on the decedent’s interest. The court may require accounting of rents, payment of liens, or appointment of a receiver in some situations.

Example Hypothetical

Suppose three siblings owned a family parcel as tenants in common. One sibling dies without a will. That sibling’s 1/3 interest passes to his two children under intestate succession. If the remaining co-owners file a partition action, the two children must be joined as defendants (or the estate’s representative if probate is opened). The plaintiffs would amend their complaint to add the children, serve them or their guardian, and proceed. If the children cannot be located after reasonable search, the plaintiffs may request service by publication for the unknown heirs and ask the court to proceed.

Helpful hints

• Start by searching the county recorder, assessor, and probate court records. These often show title and whether an estate was opened.
• If you find a probate case, name and serve the personal representative rather than naming individual heirs first; the representative speaks for the estate.
• Use genealogical records, social media, and public-record searches to locate heirs. Document your search efforts carefully if you later ask the court for substitute service.
• If heirs are minors or legally incapacitated, request the court appoint a guardian ad litem before proceeding against them.
• If you expect conflict or complex competing claims (claims by creditors, trust beneficiaries, or adverse possessors), consult an attorney experienced in California partition and probate practice early.
• Keep timelines in mind. Probate prompts and statute-of-limitations issues can affect rights to bring or defend a partition claim.

Where to look in the California statutes and rules

• Intestate succession and basic probate rules: California Probate Code § 6400 et seq. — https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?sectionNum=6400&lawCode=PRC
• Partition actions and remedies (California Code of Civil Procedure, partition provisions): refer to the Code of Civil Procedure sections on partition — https://leginfo.legislature.ca.gov/faces/codes_displayExpandedSection.xhtml?sectionNum=872.010&lawCode=CCP (entry point for partition statutes)
• California Rules of Court and local court rules govern service, guardians ad litem, and procedure for amending pleadings. Check your county’s local rules and the statewide rules at: https://www.courts.ca.gov/rules.htm

Next practical step: Gather the deed, any death certificate, and any probate case number you can find. If you do not have time to locate heirs and the property is at risk, consider consulting a California attorney who handles partition and probate matters to guide you through filing an amended complaint, serving heirs, or opening probate.

Disclaimer: This article provides general information about California law and is not legal advice. It does not create an attorney–client relationship. For advice about your specific situation, consult a licensed California attorney.