How a Partition Action Works in Arizona When One Co-Owner Is Adjudicated Incompetent and Has a Court-Appointed Guardian

Short answer: In Arizona, a partition action proceeds in civil court, but the incompetent owner’s court-appointed guardian represents the owner’s legal interests. The guardian may need authorization from the probate court to join, defend, or agree to sale or division of the ward’s real property. You should expect coordination between the civil (partition) case and the probate (guardianship) case so the ward’s property rights are protected.

Detailed answer

This section explains the typical process and legal principles that apply when co-owners of real property seek partition and one co-owner has been adjudicated incompetent and has a guardian. This is a general explanation of Arizona practice and statutes; it is not legal advice.

1. Which courts are involved?

Partition actions are filed as civil matters in the superior court (see Arizona civil procedure statutes governing partition actions, Title 12 of the Arizona Revised Statutes). Guardianship and questions about the ward’s capacity and the guardian’s authority are handled in probate court under Title 14 of the Arizona Revised Statutes. Because the guardian controls the ward’s personal and financial decisions under probate supervision, the two proceedings often must be coordinated so the ward’s property is handled lawfully. See: Arizona Revised Statutes, Title 12 (civil actions) — https://www.azleg.gov/arsDetail/?title=12 and Title 14 (guards/estates) — https://www.azleg.gov/arsDetail/?title=14.

2. Who must be joined and served in the partition case?

All co-owners and any parties with a recorded interest must be made parties to a partition action. If a co-owner has been adjudicated incompetent and a guardian has been appointed, the guardian must be served and will act for the incompetent owner (the ward) in that case. The civil court needs proof that the guardian is the properly appointed representative (for example, letters of guardianship issued by the probate court).

3. What authority does the guardian have to act in a partition?

Under Arizona guardianship law, a guardian’s powers over the ward’s property are defined and supervised by the probate court. Guardians generally may manage property for the ward, but major transactions (including selling real estate, mortgaging property, or entering agreements that permanently change title) often require prior approval from the probate court. Therefore, a guardian who wants to agree to a partition sale or to a division that affects title typically must obtain the probate court’s authorization or show that the action is within the guardian’s granted powers.

4. Typical process and steps

Pre-filing preparation: Identify all co-owners and liens, obtain the property deed, and prepare a petition for partition in superior court. If one co-owner has a guardian, request a certified copy of the letters of appointment from the probate court to prove the guardian’s authority.
Filing and service: File the partition complaint in superior court and serve all co-owners and any guardian with the complaint and summons. The guardian must receive proper notice so the ward’s interests are protected.
Guardian’s response: The guardian enters an appearance and can defend the ward’s interest. If the guardian believes the proposed division or sale is in the ward’s best interests, the guardian may file a response consenting to sale or division — but may still need probate court approval before completing a sale or transferring title.
Coordination with probate court: If the guardian needs authority to sell or transfer the ward’s property, the guardian petitions the probate court for approval (for example, to sell the ward’s interest or to approve a proposed settlement). The probate court evaluates the transaction under statutory standards and may require notice to interested persons, a hearing, and sometimes appointment of a court investigator or attorney to represent the ward’s interests.
Resolution in superior court: The superior court decides whether the property can be physically partitioned. If physical partition is impractical or would cause great prejudice, the superior court typically orders a sale and divides proceeds according to ownership shares. That sale process is supervised by the civil court but transfer of the ward’s share may require probate approval.
Distribution and closing: Proceeds from a partition sale are distributed to the parties. If the ward’s proceeds are distributed, the guardian will receive them for the ward, often subject to deposit into a protected account or further accounting to the probate court, depending on the probate court’s orders.

5. Practical complications and court safeguards

There are several practical issues to expect:

The probate court may require a formal petition and hearing before approving a guardian’s consent to sell or otherwise dispose of real property. Small transfers may be permitted under specific statutory allowances, but major transactions usually need explicit approval.
The superior court may request proof of the guardian’s authority (letters of guardianship) and may stay or coordinate the civil proceeding until the probate court rules on authorization questions.
To protect the ward, courts sometimes require an independent valuation (appraisal), appointment of an attorney for the ward in the probate case, or a guardian ad litem in the civil case.

6. Example (hypothetical)

Imagine three co-owners hold a vacation lot as tenants in common. One co-owner has been adjudicated incompetent and the probate court appointed a guardian. The two competent co-owners file a partition action asking for sale. The guardian is served, appears, and states the sale is in the ward’s best interest but asks the probate court to approve the sale price and conveyance. The superior court orders the property sold at a public sale and directs distribution of net proceeds. The probate court then reviews the proposed sale terms and authorizes the guardian to accept and close the sale on behalf of the ward, subject to safeguards and accounting.

Relevant Arizona statutes and resources

Partition actions: see Arizona statutes governing civil actions and partition under Title 12 of the Arizona Revised Statutes: https://www.azleg.gov/arsDetail/?title=12

Guardianship and probate: see Arizona probate/guardianship statutes under Title 14 of the Arizona Revised Statutes: https://www.azleg.gov/arsDetail/?title=14

Because procedure and required approvals depend on the specific facts and local court practices, consult the relevant sections of Title 12 and Title 14 and the local superior court rules.

Helpful hints

Before filing, obtain certified letters of guardianship (proof of authority) from the probate court; the superior court will want to see them.
Expect that the guardian may need probate court approval to consent to sale or transfer of the ward’s property. Plan for the additional time and filings this requires.
Get a professional appraisal and clear title information to support fair market value if the court orders a sale.
Consider mediation or settlement early. Settling with the guardian and co-owners can avoid time-consuming sales and multiple court hearings.
Ask the probate court whether an independent attorney or guardian ad litem should be appointed to represent the ward’s interest in the partition case.
Keep clear records of all transactions, accountings, and court orders; the guardian will likely need to report to the probate court after any sale or distribution of funds.
If urgent action is needed (for example to protect the property from lien or waste), ask the court for temporary relief and explain the guardianship status to the judge.

Next practical steps

If you are a co-owner considering partition or a guardian faced with a proposed partition:

Gather documentation: deed, title history, probate filings, and letters of guardianship.
Contact the clerk of the local superior court to learn procedural forms and filing requirements for partition actions.
Contact the probate court that appointed the guardian to confirm whether prior approval will be required for any sale or transfer.
Consider consulting an attorney experienced in Arizona real estate litigation and guardianship matters for case-specific advice and representation.

Disclaimer: This article explains general Arizona law and common practice. It is educational information only and not legal advice. Laws change and every situation is different. For advice about your specific case, consult a licensed attorney in Arizona or contact the probate clerk for guidance about guardianship authority and required approvals.