Illinois: Partition Actions When a Co-Owner Is Adjudicated Incompetent and Has a Court-Appointed Guardian | Illinois Partition Actions | FastCounsel
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Illinois: Partition Actions When a Co-Owner Is Adjudicated Incompetent and Has a Court-Appointed Guardian

August 12, 2025 6 min read

How Illinois Courts Handle a Partition When a Co-Owner Is Adjudicated Incompetent with a Court-Appointed Guardian

Short answer: In Illinois, a co-owner can begin a partition action even if a co-owner has been adjudicated incompetent. The guardian of the incompetent co-owner must be served and participates on the ward’s behalf. The court will protect the ward’s property interests by appointing counsel or a guardian ad litem if necessary, and the guardian must have or obtain the court authority required under the Probate Act before agreeing to a sale or distribution of the ward’s real property.

Detailed answer — step‑by‑step process under Illinois law

This section explains the typical process and the legal authorities you should know. This is educational information only and not legal advice.

1) Verify guardianship authority and obtain proof

Before filing or responding to a partition, the party should confirm that the person has been adjudicated incompetent and that a guardian of the estate (or guardian of the person and estate) has been appointed. The guardian should produce letters of office or other proof from the probate court showing the scope of authority granted. Guardianship in Illinois is governed by the Illinois Probate Act (see the Illinois Compiled Statutes for the Probate Act: 755 ILCS 5).

2) Filing and service in a partition action

A partition action under Illinois civil procedure allows a co-owner to ask the court to physically divide the property or to order sale and division of the proceeds. The plaintiff must name and properly serve all co-owners and other persons with an interest in the property, including the court-appointed guardian who represents an adjudicated incompetent co-owner. Service rules follow the Illinois Code of Civil Procedure for actions affecting real property.

Practical effect: the guardian receives notice and can appear for the ward. If the guardian is not served properly, any later sale or distribution may be voidable.

3) The guardian’s role and potential need for court authorization

The guardian has a statutory duty to protect the ward’s estate. In many cases the guardian can appear in the partition action to oppose or consent to partition. However, the guardian’s statutory powers to sell, convey, or compromise the ward’s real estate may be limited unless the probate court has specifically authorized those actions. Guardians often must petition the probate court for approval to sell or convey real property or to accept a partition sale, and the probate court will evaluate whether the proposed action serves the ward’s best interest.

Reference: consult the Illinois Probate Act for the guardian’s powers, duties, and procedures for court approval of transactions affecting ward property (see 755 ILCS 5).

4) Court protections for the ward during the partition

When an incompetent co-owner is involved, the civil court handling partition will take extra steps to protect the ward’s interests. Typical protective measures include:

  • Appointing a guardian ad litem or requiring independent counsel to represent the ward’s interests in the partition action.
  • Requiring the guardian to file a report showing the guardian has authority to settle or sell the ward’s real estate or, if not, requiring a separate probate-court approval before the property is conveyed.
  • Ordering appraisals, appointment of commissioners, or other evidence to ensure any sale or division is fair and in the ward’s best interest.

5) Partition in kind vs. partition by sale

The court will consider whether the property can be divided in kind (physically partitioned) without substantially diminishing value. If physical division is impractical or inequitable, the court ordinarily will order sale and division of proceeds. If sale is ordered, the court supervises the sale process—often through appointed commissioners or a judicial sale—and ensures proper distribution after payment of liens, costs, and the guardian’s fees (if applicable).

6) Distribution of proceeds and protection of sale proceeds for the ward

Proceeds attributable to the ward’s share typically go to the guardian for deposit or management according to probate rules. The probate court may require that proceeds be placed into a blocked or supervised account, used to pay the ward’s needs, or invested according to court orders. Any sale or distribution that reduces the ward’s property generally requires a showing that it is in the ward’s best interest.

7) If there is a dispute about the guardian’s actions

If a co-owner believes the guardian is acting improperly—e.g., consenting to an unfavorable sale, failing to protect the ward’s share, or exceeding authority—the interested party can:

  • Ask the civil court to appoint counsel or a guardian ad litem for the ward;
  • File a petition in the probate court to review or limit the guardian’s authority; or
  • Seek removal or surcharge of the guardian in probate court if there is misconduct.

Key statutory resources (Illinois)

Helpful hints

  • Obtain and review the guardian’s letters of office before negotiating or agreeing to any sale or settlement.
  • Expect the probate court to require formal approval for major transactions that affect the ward’s real property.
  • Ask the civil court to appoint a guardian ad litem or independent counsel for the ward if you suspect a conflict of interest.
  • Consider mediation between co-owners before litigation. A mediated compromise can be faster and less costly than a contested partition and may be easier to present for probate approval.
  • Document valuations and appraisals. Courts rely on fair market valuations when ordering sales or distributions.
  • Get an attorney experienced in both probate and real property litigation. Partition actions involving guardianships touch both civil and probate procedures.

Disclaimer: This article is informational only and does not constitute legal advice. Laws and procedures change. For advice tailored to specific facts, contact a licensed Illinois attorney experienced in probate and real estate litigation.

The information on this site is for general informational purposes only, may be outdated, and is not legal advice; do not rely on it without consulting your own attorney.