Short Answer

Yes. In a North Carolina partition action, the clerk of superior court can appoint a guardian ad litem (GAL) to represent heirs or co-owners whose identities or locations are unknown after you show diligent efforts to find and serve them. You typically must use service by publication first, then ask the clerk to appoint a GAL under the North Carolina Rules of Civil Procedure so the case can move forward fairly.

How North Carolina Law Applies

Partition is a special proceeding before the clerk of superior court to divide real property among co-owners or, if division is not practical, to sell the property and divide the proceeds. All co-owners and other necessary parties must be joined and properly served. When some owners are unknown or their addresses cannot be found despite diligent efforts, North Carolina law allows service by publication. After publication, the clerk may appoint a guardian ad litem (GAL) to receive notice, file an answer, and protect those absent parties’ interests so the partition can proceed.

The GAL’s role generally includes attempting to identify and locate the unknown parties and participating in the case to ensure their interests are protected—such as weighing in on whether the land should be physically divided or sold. A GAL does not have to be an attorney but must be a competent, disinterested adult without conflicts. Fees for the GAL are set by the court and are typically taxed as costs, often paid from the sale proceeds if the property is sold.

Key Requirements

• Join all known co-owners and interested parties as respondents in the partition proceeding.
• Conduct a diligent search to identify and locate missing or unknown owners (for example, deeds, probate records, obituaries, people-search tools).
• If you still cannot serve them, seek permission to serve by publication and publish notice once a week for three successive weeks in a qualifying newspaper.
• Allow the 40-day response period to run from the first publication date.
• Move for appointment of a GAL to represent any unknown or unlocatable parties after publication.
• Ensure the GAL files an answer and reports efforts to identify or locate the parties.
• File Servicemembers Civil Relief Act (SCRA) affidavits for any non-appearing parties before a default or final order is entered.

Process & Timing

1. File a special proceeding for partition in the county where the land sits. Name all known owners and describe unknown or unlocatable owners (e.g., “Unknown heirs of [Name]”).
2. Serve known respondents under Rule 4 (sheriff, certified mail, etc.). If some parties are unknown or cannot be found after diligent effort, file an affidavit and move for service by publication.
3. Publish notice once a week for three consecutive weeks in a qualifying newspaper. After the final publication, file the publisher’s affidavit and your affidavit of publication.
4. After the 40-day defense period, ask the clerk to appoint a GAL for those unknown or unlocatable parties. The clerk issues a summons to the GAL, who then files an answer and attempts further identification/location.
5. Proceed with the partition. If actual division is feasible, the clerk may appoint commissioners to divide the land; if not, the court may order a sale and later confirm it.
6. The clerk sets the GAL’s compensation and taxes it as costs. Costs are commonly paid from the common fund or sale proceeds.

What the Statutes Say

• North Carolina Partition Statutes (Chapter 46A) — Governs partition proceedings and procedures.
• N.C. Gen. Stat. § 1-394 — Special proceeding summons requirements.
• N.C. R. Civ. P. 4 and 4(j1) — Service of process and service by publication (including three-week publication and 40-day response).
• N.C. R. Civ. P. 17 — Appointment and authority of guardians ad litem.
• N.C. Gen. Stat. § 1-75.10 — Proof of service by publication (publisher’s affidavit).
• N.C. Gen. Stat. § 127B-26 — North Carolina Servicemembers Civil Relief Act requirements for affidavits when parties do not appear.

Exceptions & Pitfalls

• Skipping diligence. The clerk will expect evidence of a real, documented search before allowing publication.
• Publication errors. Use a qualifying newspaper, publish three consecutive weeks, and give the full 40-day defense period. File the required affidavits.
• Mixing up unknown vs. unlocatable. If you know who the person is but cannot find them, describe that in your affidavit; publication can still be appropriate, but the GAL request should match the situation.
• Minors or incompetents. If any owner is a minor or incompetent, the court must ensure proper representation, which often includes a GAL.
• Conflicts. The GAL must be disinterested and free of conflicts with the absent parties.
• Heirs property. If the land is “heirs property,” additional notice and buyout steps under the partition statutes may apply, which can affect timing and process.
• SCRA compliance. Before default or final orders affecting non-appearing parties, file SCRA/NC SCRA affidavits to avoid delays or challenges.

Helpful Hints

• Start with title records, probate files, obituaries, and people-search tools to build a thorough due-diligence record.
• Use the correct summons form for special proceedings and track service closely.
• Calendar the publication dates and the 40-day response period to avoid premature filings.
• Request GAL appointment promptly after publication to keep the case moving.
• Budget for publication and GAL fees; in sale-for-partition cases, these costs often come from the sale proceeds.

Disclaimer: This article is general information about North Carolina law, not legal advice. Reading it does not create an attorney-client relationship.

Talk to a Partition Action Attorney

If you’re dealing with a partition case that involves unknown or unlocatable heirs or co-owners, our firm has experienced attorneys who can help you understand your options and timelines. Call us today at (919) 341-7055.