Detailed Answer
If you inherit real property or co-own land in North Carolina, you can use a partition action to divide or sell that property without going through the traditional probate sale process—and avoid paying estate sale legal fees and commissions tied to an executor or administrator. A partition action proceeds under the North Carolina Partition Act, Chapter 46 of the General Statutes.
Here’s how it works:
- Confirm Your Standing. Under N.C.G.S. § 46-1, any person who holds title to real estate in undivided interest—such as an heir, devisee or co-tenant—may file a partition action.
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Prepare the Complaint. Draft a complaint describing:
- The legal description and address of the property.
- Your ownership interest and the names of the other owners or heirs.
- Whether you seek a physical division (partition in kind) or a sale of the property and division of proceeds.
- File in Superior Court. File the complaint in the county where the property sits. Serve each co-owner with a summons and the complaint. The court will set a deadline for each party’s response.
- Request Appointment of a Commissioner. If parties disagree on how to divide, ask the judge to appoint a commissioner under N.C.G.S. § 46-3. The commissioner surveys the land, values it and recommends either a physical division or a sale.
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Avoid Probate Sale Fees. By using a partition action:
- You eliminate the need for an executor’s or administrator’s sale and the commission they earn under N.C.G.S. § 28A-25-3.
- The court sets the commissioner’s compensation and sale costs, which often run lower than estate sale fees and realtor commissions.
- If all co-owners agree, you can waive the commissioner and divide the property by agreement, avoiding most court costs.
- Court Hearing and Order. The court reviews the commissioner’s report (if any) and enters an order. If the property sells, the court directs how to split net proceeds among the owners.
Because a partition action focuses solely on real property, it sidesteps broader estate administration expenses. You lose the executor’s commission for selling property in probate. Instead, you pay only court costs, filing fees, and the commissioner’s set fee. That typically costs less than an estate sale’s combined legal and real estate commissions.
Key Takeaways
- File a partition action in Superior Court under the North Carolina Partition Act (Chapter 46).
- All co-owners or heirs have standing if they hold undivided interests.
- Draft a clear complaint with property details, ownership interests, and your request (in kind division or sale).
- Serve all parties with summons and complaint; the court sets response deadlines.
- Ask the court to appoint a commissioner or, if everyone agrees, divide by mutual agreement to reduce costs.
- By partition, you avoid executor/administrator commissions under N.C.G.S. § 28A-25-3 and typical probate sale fees.
- Attend the hearing for the court order finalizing the division or sale proceeds distribution.
Next Steps & Call to Action
Partition actions offer property owners and heirs a streamlined path to divide or sell real estate without the extra expense of estate sale legal and commission fees. If you need guidance on drafting your complaint, serving co-owners, or working with a court-appointed commissioner, Pierce Law Group can help.
Contact Pierce Law Group’s experienced probate attorneys for a consultation. Email us at intake@piercelaw.com or call (919) 341-7055 today to discuss your partition action in North Carolina.
