Detailed Answer
In North Carolina, heirs who own undivided interests in real estate sometimes file a partition action to divide or sell the property. A common question in these actions is whether one heir can force another to pay their attorney’s fees. The short answer is that no heir can unilaterally require another to pay attorney’s fees without court approval. Under North Carolina law, the trial court may award attorney’s fees as part of the costs of a partition action, but only after considering statutory requirements and the equities between the parties.
Key statutes include:
- G.S. 46-21 authorizes the clerk or judge to allow costs of the partition proceeding, including reasonable attorney’s fees, NC Gen Stat § 46-21.
- G.S. 46-22 permits the court to direct a sale by licitation and to charge the expenses of sale against the proceeds, NC Gen Stat § 46-22.
- G.S. 7A-314 authorizes discretionary costs in civil actions, including reasonable attorney’s fees where allowed by law, NC Gen Stat § 7A-314 (see subdivision (4)).
When heirs ask the court to award attorney’s fees, the court will consider factors such as whether a party acted in good faith, the complexity of the litigation, and whether a party substantially prevailed. If the court awards fees, it may allocate those fees among the heirs in proportion to their ownership interests or otherwise as justice requires.
Therefore, one heir cannot simply bill another for attorney’s fees. Instead, the party seeking payment must petition the court, present evidence of reasonable fees, and obtain a court order that directs how costs will be shared or paid from sale proceeds.
Key Points to Remember
- No heir may unilaterally require another to pay legal fees without court approval.
- Attorney’s fees in a partition action count as costs under G.S. 46-21 and G.S. 7A-314.
- The court weighs factors like good faith, complexity, and who substantially prevailed.
- A court order is necessary to allocate attorney’s fees among heirs or charge them to sale proceeds.
- Parties may negotiate fee sharing or seek mediation to avoid contested fee applications.
At Pierce Law Group, our attorneys understand the nuances of partition actions and cost allocations in North Carolina probate. If you face a dispute over attorney’s fees or any other issue in a partition proceeding, contact us for clear guidance and strong representation. Email us at intake@piercelaw.com or call us at (919) 341-7055.
