Dec292025
Partition Action Q&A Series

Do we have to spend money trying to locate distant relatives who don’t know about the property, and who pays those costs? – North Carolina

Short Answer

In North Carolina partition cases, the court generally requires reasonable efforts to identify and notify all cotenants (including heirs who are hard to find) before the court can enter orders that bind everyone’s property rights. If some cotenants are unknown or unlocatable, the court can still move the case forward, but it may appoint a guardian ad litem to represent those interests. Many costs that benefit all cotenants—often including reasonable attorneys’ fees for the “common benefit”—can be allocated across all cotenants based on their ownership shares, rather than falling on only one heir.

Understanding the Problem

In a North Carolina partition action, co-owners (often heirs) may want the court to order a sale of inherited real estate and divide the proceeds. The key decision point is what must be done when some potential cotenants cannot be located or do not respond, because the court process still needs to protect their rights before the property can be sold and the proceeds distributed.

Apply the Law

North Carolina’s partition statutes are designed to let a partition case proceed even when not every ownership claim is neatly resolved at the start, while still requiring the case to include and protect the interests of all cotenants. When a cotenant is unknown or cannot be located, the court may treat those interests together for purposes of moving the partition forward and may appoint a guardian ad litem to represent unknown or unlocatable parties so the court’s orders can be binding. Separately, North Carolina law allows the court to allocate certain fees and costs across all cotenants when the work benefits everyone (for example, work needed to get the case properly before the court).

Key Requirements

  • All cotenants must be brought into the case: A partition case must account for every person who may own an interest, including heirs who are hard to find, because the court is deciding rights in real property.
  • Unknown or unlocatable interests must be protected: If a cotenant cannot be identified or located, the court can appoint a guardian ad litem to represent that interest so the case can proceed in a way that is fair and binding.
  • Cost allocation often follows “common benefit” and ownership shares: When legal work benefits all cotenants (such as work needed to move the partition forward), the court can allocate reasonable attorneys’ fees among all cotenants according to their interests, subject to fairness.

What the Statutes Say

Analysis

Apply the Rule to the Facts: Here, known heirs agree on pursuing a court-ordered sale, but some potential heirs are unresponsive or cannot be located, including one who is incarcerated. Because a partition sale affects everyone’s property rights, the case typically cannot ignore missing cotenants; instead, the case usually requires reasonable steps to identify and serve them, and if they remain unknown or unlocatable, the court can appoint a guardian ad litem to represent those interests. Work done to get all necessary parties properly included and represented often qualifies as work for the common benefit, which supports spreading certain fees across all cotenants based on ownership shares.

Process & Timing

  1. Who files: Any cotenant (including an heir who holds title as a co-owner). Where: The Clerk of Superior Court in the county where the property is located. What: A partition petition/complaint naming all known cotenants and describing the property and each claimed interest. When: There is no single universal “file by” date in the partition statutes, but timing matters because the case cannot move efficiently until parties are identified and served.
  2. Locating and serving missing cotenants: The filing party (through counsel) typically gathers family and title information, checks available records, and attempts service at last-known addresses. If a cotenant is incarcerated, service may require using the facility address and following the civil rules for service. If a cotenant still cannot be located or is unknown, the case may request appointment of a guardian ad litem to protect that interest.
  3. Moving the case forward and allocating costs: Once the court is satisfied that all interests are either properly served or properly represented (including by a guardian ad litem when needed), the court can proceed toward partition in kind or a partition sale. The court can then address how to allocate attorneys’ fees incurred for the common benefit among all cotenants based on their ownership shares, and address other cost issues as the case progresses.

Exceptions & Pitfalls

  • Assuming “no response” means “no rights”: A missing heir may still own an interest. Skipping notice steps can delay the case or create problems with a later sale and distribution.
  • Confusing “common benefit” fees with disputed-issue fees: North Carolina distinguishes between fees that benefit all cotenants (often allocable across everyone) and fees spent fighting over certain disputed issues (which may be allocated differently). The way a dispute is framed can affect who pays.
  • Not planning for guardian ad litem costs: If the court appoints a guardian ad litem for unknown or unlocatable parties, that appointment can add time and cost. In many cases, those costs are treated as part of getting the case properly before the court, but allocation can depend on the circumstances and the court’s fairness analysis.
  • Incomplete party list from title issues: Partition often requires careful review of deeds and estate history. If the party list is incomplete, the case may need amendments, additional service attempts, and added delay.

Conclusion

In North Carolina, a partition sale generally requires reasonable efforts to identify and notify all cotenants, even distant relatives who do not know about the property. If some cotenants remain unknown or unlocatable, the court can appoint a guardian ad litem so the case can proceed and the result can bind those interests. Costs that benefit all cotenants—often including reasonable attorneys’ fees for the common benefit—are commonly allocated among all cotenants based on ownership shares. The next step is to file the partition proceeding in the county where the property is located and promptly begin service and guardian ad litem steps if needed.

Talk to a Partition Action Attorney

If a partition sale is being pursued and some heirs cannot be located or will not respond, our firm has experienced attorneys who can help explain the notice requirements, guardian ad litem issues, and how courts typically handle cost allocation. Call us today at (919) 341-7055.

Disclaimer: This article provides general information about North Carolina law based on the single question stated above. It is not legal advice for your specific situation and does not create an attorney-client relationship. Laws, procedures, and local practice can change and may vary by county. If you have a deadline, act promptly and speak with a licensed North Carolina attorney.

Category: Partition Action Q&A Series

Author: jpierce

Attorney Jared Pierce is the founder of Pierce Law Group in Raleigh, North Carolina, a firm he established with a dedicated focus on probate administration and estate planning across North Carolina. Born and raised in the Republic of South Africa, Jared moved to Durham with his family in 2001, bringing with him a rich cultural background and a distinctive accent that often serves as a conversation starter.