What is a partition action in North Carolina probate law?
Detailed Answer
When someone dies owning real property with two or more co-owners, those co-owners become tenants in common. If they cannot agree on how to use, manage, or sell the land, any co-tenant can file a partition action. A partition action is a lawsuit in Superior Court that ends co-ownership by dividing or selling the property and distributing the proceeds according to each party’s share.
North Carolina law governs partition actions under Chapter 46 of the General Statutes. For example, N.C.G.S. § 46-1 allows “any tenant in common or joint tenant” to maintain a partition action. You can read the full text here: N.C.G.S. § 46-1.
In probate administration, a personal representative or an heir may also ask the clerk of superior court to order sale of real estate for distribution under N.C.G.S. § 28A-15-4. That statute reads in part: “Upon petition by the personal representative or any heir or legatee, the clerk may direct sale of any real property for the purpose of distribution.” You can review it here: N.C.G.S. § 28A-15-4.
There are two main types of partition:
- Partition in kind. The court physically divides the land into separate parcels. Each co-tenant receives a portion matching their ownership interest.
- Partition by sale. The court orders the property sold at public auction. After paying costs, it divides the sale proceeds among the co-tenants.
Which route the court takes depends on factors like the shape, size, and value of the property. If dividing the land would be unfair or impractical, the court usually orders a sale.
Key Points to Remember
- Any co-tenant can start a partition action in Superior Court under N.C.G.S. § 46-1.
- In probate, a personal representative or heir may ask the clerk to order a sale under N.C.G.S. § 28A-15-4.
- Court costs, appraisal fees, and attorney’s fees come out of the sale or reduce the land value if the property divides.
- Co-tenants should explore a voluntary agreement before filing suit. A negotiated sale or buy-out can save time and expense.
- If you file a partition action, the court issues notices to all co-owners. They can join the lawsuit and assert their interests.
- Partition actions can take several months to over a year depending on complexity and court schedules.
Next Steps
Partition actions involve complex rules on property appraisal, notice, sale procedures, and fund distribution. If you are facing a dispute over inherited real estate or need help petitioning the court, turn to an attorney with years of probate experience.
Contact Pierce Law Group
Pierce Law Group’s attorneys stand ready to guide you through the probate process and protect your interests. To discuss your situation, email us at intake@piercelaw.com or call us at (919) 341-7055. Let us help you find the best path forward.
