Short Answer

In North Carolina, partition cases are usually special proceedings before the Clerk of Superior Court. Your summons controls the response deadline—special proceeding summons typically require an answer within 10 days of service, while a civil summons allows 30 days. To get more time, file a motion under Rule 6 asking the court to enlarge the deadline before it expires; after it expires, you must show excusable neglect. If you do not respond, the clerk can move forward and may order partition in kind or by sale after notice and hearing.

Understanding the Problem

In North Carolina, can you file an answer or get more time in a partition case brought by co-owners, and how quickly must you act? You are a respondent in a partition proceeding before the Clerk of Superior Court. You must either file a written answer or request an extension by motion within the time on your summons. One key fact here: the will giving you your share has not been probated, and you live in the house.

Apply the Law

Partition is generally a special proceeding filed in the county where the land lies and heard by the Clerk of Superior Court. A special proceedings summons typically gives 10 days from service to answer. In some cases, a civil summons may be used, which sets a 30‑day deadline. After initial Rule 4 service, later papers are served under Rule 5. The court may enlarge deadlines for good cause if you move before they expire, and for excusable neglect if you move after they expire. If your answer raises title disputes or equitable defenses, the clerk must transfer the case to the superior court civil docket.

Key Requirements

• File a timely written answer: Use the deadline stated on your summons—10 days is common in special proceedings; 30 days if a civil summons was used.
• Ask for more time by motion: Before the deadline, move under Rule 6 to enlarge time for cause; after, you must show excusable neglect.
• Serve properly: Serve your answer or motion on all parties under Rule 5 and file a certificate of service.
• Forum and transfer: The Clerk of Superior Court hears special proceedings; title disputes or equitable issues require transfer to superior court.
• Title from an unprobated will: Devisees’ title to real estate vests upon probate and relates back; until then, heirs at law hold record title.

What the Statutes Say

• N.C. Gen. Stat. § 1-394 (Special proceeding summons and answer period) – Special proceedings use a summons that typically requires an answer within 10 days of service.
• N.C. R. Civ. P. 6(b) (Enlarging time) – Court may extend deadlines for cause shown; after expiration requires excusable neglect.
• N.C. Gen. Stat. § 1-301.2 (Transfer of special proceedings) – Clerk must transfer to superior court when issues of fact, equitable defenses, or equitable relief are raised.
• N.C. Gen. Stat. § 28A-15-2(b) (When real property vests) – Title to real property vests in devisees upon probate and relates back to the date of death.

Analysis

Apply the Rule to the Facts: Check the summons you received: if it is a special proceeding summons, your answer is likely due in 10 days; if it is a civil summons, you have 30 days. Because the will has not been probated, promptly probate the will to establish your status as a devisee; that clarifies title and party alignment. In your answer, you can request partition in kind (instead of sale) and assert credits for taxes and necessary improvements. If co-heirs dispute title based on the unprobated will, ask the clerk to transfer the case to superior court.

Process & Timing

1. Who files: Respondent/homeowner. Where: Clerk of Superior Court, Special Proceedings file in the county where the property is located. What: a written Answer and, if needed, a Motion to Enlarge Time under Rule 6(b). When: File the answer or the Rule 6 motion before the deadline stated on your summons (often 10 days for special proceedings; 30 days if a civil summons).
2. After your filing, the clerk typically notices a hearing. If your pleadings raise title or equitable issues, the clerk transfers the matter to superior court; expect several weeks for scheduling, varying by county.
3. Following hearing(s), the court will decide whether to partition in kind or order a sale and appoint commissioners or enter an order of sale, with subsequent steps under judicial sale procedures if a sale is ordered.

Exceptions & Pitfalls

• Do not assume you have 30 days—special proceeding summons often require 10 days. Always check the summons form and language.
• Informal agreements to “give more time” can fail; get a signed consent order or file a Rule 6 motion before the deadline.
• If you miss the deadline, you must show excusable neglect; do not delay. The clerk can still proceed after notice and hearing.
• Unprobated will: probate quickly to establish your status as a devisee; otherwise, heirs at law may be treated as current title holders.
• Preserve claims for credits (taxes, insurance, necessary repairs) and requests for partition in kind in your answer to avoid waiver arguments.

Talk to a Partition Action Attorney

If you’re facing a partition case and need to answer or secure more time while protecting your right to stay in the home or seek credits, our firm has experienced attorneys who can help you understand your options and timelines. Call us today at .

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.