Dec32025
Partition Action Q&A Series

Can attorney fees, closing costs, and advances paid on someone’s behalf be taken out before splitting the remaining funds? – North Carolina

Short Answer

In a North Carolina court-supervised partition sale, the clerk or judge typically approves and pays sale-related costs and certain attorney fees out of the gross sale proceeds before splitting the remaining funds among the co-owners or an estate. The court must find the fees and costs reasonable and for the common benefit or otherwise authorized. Any prior advances or reimbursements are handled either as costs of the proceeding or as contribution claims, which can adjust what each party ultimately receives.

Understanding the Problem

The question here is narrow: in a North Carolina partition action where a co-owned property has been sold under court supervision, can the court first deduct attorney fees, closing costs, and advances paid on a co-owner’s or estate’s behalf, and then divide the remaining balance between a living co-owner and a decedent’s estate? A typical scenario involves a clerk of superior court overseeing a partition sale, approving a commissioner’s or closing statement, and setting a hearing to decide which costs come “off the top” of the sale proceeds before calculating each party’s share. The focus is on how North Carolina partition law treats common-benefit expenses, court-approved fees, and reimbursement-type advances when distributing the net sale proceeds.

Apply the Law

Under North Carolina law, a partition of real property is a special proceeding in superior court. When the court orders a partition sale, the procedure generally follows the judicial sale rules, and the court must decide how to allocate costs, attorney fees, and any contribution-type claims before final distribution. Attorneys’ fees for the common benefit are allocated among cotenants, costs of sale are treated as taxable costs, and certain advances (like taxes or assessments paid for the property) may be recognized as liens or contribution claims that affect each party’s final share.

Key Requirements

  • Common-benefit attorney fees: The court may allocate reasonable attorney fees incurred for the common benefit of all cotenants among them according to their ownership interests, unless a cotenant shows that allocation would be unfair.
  • Sale and proceeding costs: Court costs, commissioner fees, survey costs, and necessary sale or closing expenses are typically taxed and paid from the sale proceeds before any net amount is distributed to the cotenants or an estate.
  • Advances and contribution claims: Certain advances for the property (such as taxes or special assessments) can be treated as liens or contribution claims and, if properly raised and supported, can be reimbursed or credited before or as part of the final distribution.

What the Statutes Say

Analysis

Apply the Rule to the Facts: In the described partition sale, the clerk or judge will first review and approve reasonable attorney fees, commissioner and closing costs, and other taxable expenses and order them paid from the gross sale proceeds. Because one co-owner is expected to receive one-half of the net and the balance is going to the decedent’s estate, the court will allocate common-benefit attorney fees and costs against the whole fund before calculating those shares, unless a party shows that a different allocation is more equitable. If a co-owner or the estate paid property-related advances (for example, taxes or necessary assessments) and properly asserted contribution or lien rights, the court may credit or reimburse those amounts in connection with the distribution order, which can change each party’s final dollar amount.

Process & Timing

  1. Who files: A cotenant or a personal representative of a deceased cotenant files the partition petition. Where: In the office of the Clerk of Superior Court in the North Carolina county where the real property lies. What: A verified partition petition requesting actual partition or sale (and, if relevant, sale to pay estate debts), along with any motions for attorney fees, costs, and contribution or reimbursement. When: Typically before or shortly after the court orders a partition sale, with fee and cost motions often heard at or before the final distribution hearing.
  2. The court appoints a commissioner and conducts the sale following judicial sale procedures. After closing, the commissioner files a report or accounting with a proposed distribution that lists gross proceeds, closing costs, court costs, attorney fees, and any claimed advances. Parties usually have a short window (often 10 days from service of the report or notice) to file written objections or exceptions.
  3. The clerk holds a distribution or confirmation hearing, rules on objections, sets and approves reasonable attorney fees and costs, and orders which items are paid first from the sale proceeds. The clerk then issues a written order of distribution directing payment of costs, fees, and any approved reimbursements, and specifying the net amount each cotenant or the estate receives.

Exceptions & Pitfalls

  • Not all attorney fees qualify as “common benefit” fees. Fees incurred fighting about method of partition or how to divide proceeds may be allocated only among the aligned parties, not across all co-owners.
  • If advances (such as taxes or assessments) are not properly documented or pled as contribution or lien claims in the partition proceeding, the court may refuse to treat them as off-the-top reimbursements, leaving the payor to pursue a separate claim.
  • Failing to object timely to the commissioner’s or distribution report can result in automatic confirmation of fees, costs, and allocations, even if a party disagrees with them.
  • Sale or closing expenses that are not necessary to complete the court-ordered sale, or that benefit only one party, may be reduced, denied, or charged solely to the benefiting party instead of taken from the common fund.

Conclusion

In a North Carolina partition sale, the court generally pays court costs, commissioner and survey fees, closing expenses, and properly supported attorney fees out of the gross proceeds before splitting the remaining funds among the cotenants or an estate. Advances for taxes or similar property charges can be recognized as contribution or lien claims and credited or reimbursed if properly raised. The key next step is to review the commissioner’s or closing report and file any objections or fee/cost responses before the clerk’s deadline so the distribution order reflects the correct off-the-top deductions and fair shares.

Talk to a Partition Action Attorney

If you’re dealing with a North Carolina partition sale where the court must decide what attorney fees, closing costs, or advances are paid before co-owners and an estate receive their shares, our firm has experienced attorneys who can help you understand your options and timelines. 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.