Detailed answer — can heirs be included, and how?

Yes. If a co‑owner of real property (for example, your sibling) died and their ownership interest passed to heirs or a personal representative, those heirs or the representative are proper parties to a partition action in Colorado. A partition action divides or sells real property among co‑owners. Colorado law recognizes that anyone who holds a present ownership interest must be included or represented so the court can finally decide property rights and divide proceeds.

Common situations and how the law treats them

• Probate open and a personal representative (PR) appointed: If the deceased’s interest is in an estate that is being probated, you typically name the estate (by its personal representative) as a defendant or party in the partition case. The PR can represent the estate’s interest and bind the estate for distribution of proceeds.
• No probate opened yet, heirs known: If the person died intestate or the will did not transfer the interest, the interest may have passed immediately to heirs or devisees. You should identify and join those heirs/devisees as parties in the partition complaint so they get notice and an opportunity to participate.
• Heirs unknown, minors, or incapacitated persons: If heirs are unknown or include minors/incapacitated persons, Colorado procedure requires special steps (appointment of a guardian ad litem or substitute party) so those persons’ interests are represented. The court can permit service by publication when necessary.

Relevant Colorado authorities (where to look)

Partition actions and procedure appear in Colorado’s real property and civil procedure laws. See Colorado Revised Statutes, Title 38 (Real and Personal Property) for statutes addressing partition generally. See Title 15 for probate and intestate succession rules. For joinder, substitution, and service procedures, consult the Colorado Rules of Civil Procedure.

Helpful links:

• Colo. Rev. Stat., Title 38 (Real and Personal Property)
• Colo. Rev. Stat., Title 15 (Probate)
• Colorado Rules of Civil Procedure (joinder, service, substitution, parties under disability)

Typical steps to add heirs to a Colorado partition action

1. Confirm death and ownership transfer: Get a certified copy of the death certificate and review title records and any will to see how the interest passed (to a PR, to named devisees, or by intestacy to heirs).
2. Check probate records: Search county probate court records where the deceased lived or owned property to see if a probate case exists and whether a personal representative has been appointed.
3. Name the correct party in your complaint:
   • If a PR exists, name the estate by naming the PR (e.g., “Estate of Jane Doe, by and through John Smith, Personal Representative”).
   • If no PR and heirs are known, name the heirs individually as defendants (use full legal names where possible).
   • If heirs are unknown or there may be unknown/unborn heirs, ask the court to authorize substituted service or to appoint a guardian ad litem for unborn/minor heirs.
4. File an amended complaint or motion to join parties if the case is already pending: Use the Colorado Rules of Civil Procedure for joinder or substitution (for example, rules addressing adding parties or substituting representatives). You may need a court order to add a newly discovered heir.
5. Serve process properly: Serve the PR, heirs, or their counsel in accordance with Colorado service rules. If a party cannot be located, the court may allow service by publication after appropriate efforts to find them.
6. If minors or incapacitated persons are parties: Move the court to appoint a guardian ad litem or other representative under the Rules (so their interests are protected in the partition). The court will follow procedures to ensure due process for those parties.
7. Address title and distribution: If the court divides or sells the property, it will allocate proceeds according to ownership shares and after resolving liens, expenses, and claims against the estate. If the deceased’s interest is claimable by creditors of the estate, those matters may need coordination with probate proceedings.

Practical example (hypothetical)

Suppose you and your late sister owned rental property as tenants in common. Your sister died leaving three children, and no probate has been opened. To partition the property, you would:

• Obtain your sister’s death certificate;
• Confirm via county records that her share passed to her heirs (or check for a will);
• File a partition complaint naming the three children as defendants (or name the estate if a PR is later appointed);
• Serve the children; if a child is a minor, ask the court to appoint a guardian ad litem.

Helpful hints — practical tips to simplify the process

• Start by searching the county probate court records where the decedent lived — an appointed PR simplifies representation and notice.
• Obtain and include a certified death certificate in your court filing to prove the co‑owner’s death.
• Use title reports to find all possible heirs, liens, and judgments affecting the property before filing.
• If you expect difficulty locating an heir, document your search efforts (addresses, last known contacts) — courts require reasonable attempts before allowing service by publication.
• When minors or incapacitated persons are involved, immediately ask the court to appoint a guardian ad litem to avoid later vacating judgments.
• Coordinate with probate counsel if the estate is open — partition results may need the estate’s cooperation to distribute proceeds correctly.
• Filing a lis pendens (notice of pending action) protects the court’s result by notifying potential buyers or encumbrancers that the property title is disputed while the case is pending.