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Partitioning Inherited Property in Probate and Trust Administration

A partition in Florida can occur either inside of a probate case or outside of it. In Florida, partition of property in probate cases is governed by section 733.814, Florida Statutes. Section 733.814, Florida Statutes. When two or more people are entitled to the distribution of real estate after someone passes away, disagreements about what to do with the property may arise. For example, sometimes one heir wants to sell the property and another wants to keep it. Sometimes one party offers to “buy out” the other party to resolve this sort of disagreement. One way the law provides for these differing objectives is through requiring a forced sale through a partition action, which occurs when either the personal representative or an heir petitions the probate court while the estate is being administered. When this happens, the court may order that the personal representative sell the property if it cannot be divided without prejudice to the owners. It is important to remember that if the property can be physically divided without harm to the owners and otherwise maintain its value while doing so, it may not be partitioned through forced sale if a party objects on this basis. For example, at least one Florida case has held that the trial court improperly denied a petition for the partition of land in the residue of an estate where the only issue between the residuary beneficiaries was whether the property should be partitioned in kind (physically divided) or the property sold and the proceeds distributed to the parties. In reversing the trial court’s ruling, the appellate court stated that the evidence did not support a finding that the property was not susceptible to partition in kind without prejudice to the owners, and therefore the trial court erred in ordering the entire tract sold over the owners’ objections. The litigants in the trial court failed to ensure that the trial court’s order provided this necessary finding of fact as required by the partition statute. This case demonstrates the need for a partition case to be sufficiently pled and handled by an experienced partition attorney.

Additionally, where a cotenant dies during the pendency of a suit for partition, it is necessary that such person’s heirs or devisees be made parties to the suit before proceeding further with the partitioning of the property.

Partitions can also take place when the property is part of a trust. Unless otherwise provided in the statutes pertaining to partition, a trustee has the power to exchange, partition, or otherwise change the character of trust property. Where a naked or dry trust is created that vests the legal title to the trust property in the grantee to hold simply for the use of the beneficiaries, the beneficiaries may obtain a partition of the property under the rule that one who has the equitable title and a present right of possession to property also has the attendant right to secure its partition. On the other hand, as a general rule, where property is placed in trust by either a testamentary direction or a deed of trust and such instrument provides that the corpus of the trust is to be held, managed, and disposed of in a particular way, as directed by the trustor, the beneficiary, or one claiming by or through him or her, cannot maintain a suit for partition of the property during the trust’s active existence. To permit partition in such a case would result in defeating the purposes of the trust and would, in effect, constitute a usurpation by the court of the powers of the trustee.

In addition, Florida has adopted the Uniform Partition of Heirs Property Act. The Act simplifies partitions for heirs who acquire property. The Act allows for the court to determine:

  • property value;
  • the buyout of cotenants;
  • the sale of property through open-market sale, sealed bids, or auction;
  • allows cotenants to agree to certain partitions of real property.

The Act also applies to situations where heirs inherited real estate through a Lady Bird deed. This frequently becomes a problem because Lady Bird deeds are viewed as an estate planning tool for the less wealthy, but can result in scenarios where multiple owners can’t or don’t maintain the property and won’t hire a lawyer to address the problem. The Act also applies to situations where the property original owner had a will as well as where the owner did not have a will.

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Have a property that you inherited and need partitioned? Call partition attorney Andrew J. Pascale to get started

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