Partition actions in Arkansas when a co-owner is adjudicated incompetent

Short overview: A partition action asks a court to divide or sell real property owned by two or more people. When one co-owner has been adjudicated incompetent and has a court-appointed guardian, the guardian steps in to protect that co-owner’s legal interests in the partition. The court must ensure the incapacitated co-owner’s property rights and best interests are protected through the guardian or a court-appointed representative.

Who files and where

In Arkansas, a partition action is a civil action filed in the circuit court in the county where the real property lies. Any co-owner who wants the property divided or sold files the petition. The petition must name all record owners. If a co-owner has been adjudicated incompetent, the petition must name that person’s guardian or conservator as the party who represents the incapacitated co-owner’s interests.

Key procedural steps

1. Check the guardianship order: Determine whether the court-appointed guardian has authority over the ward’s real property (often called guardian of the estate or conservator) or only authority over personal decisions. The guardian’s written appointment or the guardianship order describes what transactions the guardian may make without further court approval.
2. Name and serve the guardian: Serve process on the guardian (not just the incapacitated person). Also attach or reference the guardianship order so the court knows the guardian’s powers and the guardianship case number.
3. Ask the court to protect the ward’s interests: When the petition is filed, the moving party should ask the circuit court to appoint a guardian ad litem or an attorney to represent the incapacitated co-owner if there is any question about whether the currently appointed guardian can represent the ward’s property interests or if the guardian has a conflict.
4. Valuation and proposals: The court commonly orders appraisal(s) or appoints commissioners to assess value and explore dividing the property “in kind” (physically dividing) or ordering a sale and dividing proceeds. The guardian may present acceptance of an offered buyout, object, or request that the court order a sale if that is in the ward’s best interest.
5. Court approval of transactions involving the ward: If the guardian’s powers do not expressly allow sale of real property or compromise of the ward’s interest, the guardian generally must obtain court approval before agreeing to sale, buyout, or other disposition of the ward’s share. The circuit court will evaluate whether any settlement or sale is fair and in the ward’s best interest before approving it.
6. Hearing and final order: After notice and any required appraisals or reports, the court will hold a hearing. The court may: (a) order division of the property in kind; (b) order partition by sale and direct how to divide proceeds; or (c) approve a negotiated buyout or settlement involving the guardian, if the court finds it fair to the ward. The court’s order will bind the guardian and the ward if issued with the proper protections for the ward’s interests.

Practical distinctions to watch

• Guardian of the person vs. guardian of the estate: Guardians appointed only to make personal-care decisions normally lack authority to sell or convey real property. Guardians of the estate or conservators (terminology varies) typically have property-management authority, but that authority can be limited by the guardianship order.
• Guardian conflicts: If the guardian has a conflict (for example, the guardian is another co-owner with competing interests), the court may appoint an independent attorney or guardian ad litem to represent the incapacitated co-owner in the partition case.
• Court oversight: Arkansas circuit courts exercise close oversight of transactions that affect a ward’s property. Expect the court to require evidence showing any sale, buyout, or distribution is fair and protects the ward.

What the guardian typically must do

• Appear in the partition action to represent the ward’s interests.
• Provide the guardianship order and any powers delegated by the guardianship court.
• Obtain court approval for major transactions affecting the ward’s share if the guardianship order or Arkansas law requires it.
• Work with appraisers, mediators, or the court-appointed commissioners to establish value and recommend the best disposition for the ward.

Possible outcomes

• Partition in kind: the court divides the property physically among co-owners when feasible and equitable.
• Partition by sale: the property is sold and proceeds are divided; the court supervises sale terms and distribution.
• Buyout or settlement: another co-owner buys the ward’s share or the parties settle; the guardian may need court approval.

Where to find Arkansas law and court resources

Arkansas statutes and legislative materials are available from the Arkansas General Assembly website: https://www.arkleg.state.ar.us/. The Arkansas Administrative Office of the Courts (AOC) maintains information about guardianship and conservatorship practice and circuit-court procedures at the Arkansas Courts website: https://www.arcourts.gov/. If you need specific statutory language, use the Arkansas General Assembly site to search for terms such as “partition,” “guardianship,” or “conservator.”

When to get a lawyer

If you are a co-owner seeking partition or if you are a guardian handling a ward’s property interest, you should consult a licensed Arkansas attorney experienced in real property and guardianship matters. A lawyer can:

• Confirm the guardian’s precise authority under the guardianship order.
• Draft and file the partition petition and necessary protective motions.
• Work with the court to obtain appraisals and proposed orders that protect the ward.
• Negotiate buyouts or settlements and seek required court approvals.

Disclaimer

This article is educational only and does not constitute legal advice. It is not a substitute for consulting a licensed Arkansas attorney about your specific facts.

Helpful Hints

• Gather documents before you start: recorded deeds, title reports, the guardianship order (court file number and powers), mortgage or liens, tax records, and any written offers or communications between co-owners.
• Check the guardianship order first to learn whether the guardian can sell or compromise the ward’s real-property interest without further court permission.
• Serve the guardian properly and include the guardianship case number so the court can review the guardian’s authority quickly.
• Consider mediation or a negotiated buyout — courts often favor settlements that avoid costly litigation, but the court still must approve deals that affect a ward.
• Expect appraisal or valuation: the court commonly orders one or more appraisals to ensure a fair distribution or sale price.
• If the guardian has a conflict or the guardian’s actions raise concern, ask the court to appoint an independent attorney or guardian ad litem for the incapacitated co-owner.
• Remember costs: partition actions can involve filing fees, appraisals, attorney fees, and sale costs; those costs typically come out of sale proceeds before division.
• Contact the circuit court clerk in the county where the property lies for local filing practices and forms, and review Arkansas Court resources at https://www.arcourts.gov/.