Can I file a partition action or petition for sale of inherited real estate when some heirs are minors?

Short answer: Yes — under Illinois law heirs (including minors) can be part of a partition action or a petition to sell real property. Courts treat minors differently: the court will require someone to represent the minor’s interests (often a guardian ad litem or a guardian of the estate), protect any sale proceeds for the minor, and may require court approval for compromises or distributions. This article explains how the process typically works, what special steps protect minors’ interests, and practical next steps.

Detailed answer — How the process works in Illinois

1. Which law controls partition cases in Illinois?

Partition actions are governed by the Illinois Code of Civil Procedure. See the Partition Act, 735 ILCS 5/13-101 et seq. for the procedures courts use when co-owners seek division or sale of property. For general rules about guardians and estate administration for minors, courts rely on the Illinois Probate Act and related statutes. (See links below.)

Helpful statutory references:

Partition Act (Illinois Code of Civil Procedure), 735 ILCS 5/13-101 et seq.: https://www.ilga.gov/legislation/ilcs/ilcs3.asp?ActID=2126&ChapterID=60
Probate Act (for guardianship/estate matters), 755 ILCS 5/: https://www.ilga.gov/legislation/ilcs/ilcs3.asp?ActID=1757&ChapterID=59

2. Who can file and who must be named in the case?

Any co-owner of the property can file a partition action — that includes adult heirs and heirs who are minors (represented by a guardian). The plaintiff must name all known owners or parties with an interest in the property. That means you should make a diligent effort to identify and join all heirs, including minors, by listing their names and any known guardians or parents.

3. How does the court treat minors in a partition action?

Courts will not leave a minor unrepresented. Common protective steps the court takes:

Appoint a guardian ad litem (GAL) to represent the minor’s position in the litigation, or require the minor’s parent or legal guardian to appear for the minor if permitted.
If the matter involves selling the property and distributing cash, the court may require a guardian of the minor’s estate (under the Probate Act) to receive and manage any proceeds payable to the minor.
Require court approval for any settlement or distribution that affects a minor’s share.

4. Partition in kind vs partition by sale — which is likely when minors are involved?

There are two primary remedies:

Partition in kind — the court divides the land into separate parcels for each owner. This is often impractical for houses or small lots.
Partition by sale — the court orders sale of the property and distribution of proceeds. This is much more common for family homes and when physical division is not feasible.

When minors are co-owners, courts frequently order a sale rather than a physical division, because selling and placing the minor’s share under court protection is simpler and reduces the risk a minor will be burdened with land management responsibilities.

5. Court steps and timeline (typical)

File a petition for partition in the county where the property is located, identifying all owners and the relief requested (partition in kind or sale).
Serve all parties. If a co-owner is a minor, serve that minor’s parent or guardian and notify the court so that the court can appoint a guardian ad litem if needed.
The court may order an appraisal and may appoint a commissioner or referee to handle sale logistics if sale is ordered.
If sale is ordered, the court will supervise the sale or confirm a private sale and enter an order directing distribution of proceeds.
For any minor’s share, the court will typically require the money be placed into a protected account, paid to a court-appointed guardian of the estate, or otherwise managed under court supervision until the minor reaches majority or a court-authorized arrangement is made.

6. Representation options for minors

The court will require someone to represent the legal and financial interests of any minor. Common options:

Guardian ad litem (appointed for the litigation only).
Guardian of the estate (appointed through probate) if the minor receives money or property that requires management.
Parent or existing legal guardian — sometimes the court allows a parent to represent the minor, but the court may still appoint a GAL when a conflict or ambiguity exists.

7. Protecting the minor’s share after a sale

Courts tend to protect sale proceeds for minors by:

Ordering funds deposited in the court registry or into a blocked/protected account.
Requiring appointment of a guardian of the estate to manage the money until the minor is an adult.
Approving any investment or distribution plan for the minor’s benefit.

8. Alternatives to court partition

Before filing, consider out-of-court solutions:

One heir buys out the others (court approval may still be required for the minor’s share).
Voluntary sale and division with a written agreement approved by the court to protect any minor’s share.
Mediation to reach an agreed solution faster and cheaper than litigation.

Practical checklist: How to prepare

Collect documents: the deed, death certificate (if inherited), wills or probate papers, tax bills, mortgage statements, and current title information.
Identify and contact heirs — include full names and dates of birth for minors, and parents or legal guardians.
Get a recent appraisal or broker’s opinion of value to understand market value and possible sale proceeds.
Decide whether you want partition in kind, sale, or to try a negotiated buyout.
Be prepared to ask the court to appoint a guardian ad litem or guardian of the estate for any minor; gather contact information for proposed guardians if you can.
Consider temporary protections — ask the court to restrain any party from encumbering, selling, or wasting the property while the case is pending.

When to involve the probate court instead

If the property is still going through probate, it may make sense to resolve title and distribution issues in the probate case rather than filing a separate partition action. A probate court handles guardianship and distribution to minor beneficiaries and can sell property when necessary. Compare time, cost and the protections each court offers before you proceed.

Helpful Hints

Open communication with all heirs reduces conflict and often avoids costly litigation.
Obtain an independent appraisal before asking the court to order a sale; it helps the court set a fair reserve price.
Ask the court to appoint a guardian of the estate early if sale proceeds will be paid to a minor — that avoids later disputes about how the money is held or invested.
Keep careful records and receipts for any expenses paid on behalf of the property: taxes, insurance, repairs — these may affect distributions.
Consider mediation or a buyout if heirs agree — courts favor settlements that are fair to minors and may simply review and approve the agreement rather than litigate a full partition case.
Be mindful of timelines: probate and civil court schedules vary by county and can add months to the process.

Where to get help

If you are unsure how to proceed, consult an Illinois attorney who handles real estate, probate, or family property disputes. An attorney can advise whether to pursue a partition action, handle guardian appointments, and prepare the required petitions and notices. If cost is a concern, look for local legal aid programs or county bar association lawyer referral services.

Disclaimer: This article explains general Illinois procedures and common practices. It is for informational purposes only and does not constitute legal advice. Laws change and facts matter. Consult a licensed Illinois attorney about your specific situation.