Can heirs of a deceased sibling be included in a partition action in Illinois (IL), and how do I add them? | Illinois Probate | FastCounsel
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Can heirs of a deceased sibling be included in a partition action in Illinois (IL), and how do I add them?

August 8, 2025 6 min read

Detailed Answer

Short answer: Yes. Under Illinois law, heirs of a deceased sibling who owned (or co-owned) real property can be joined in a partition action. To include them you must identify who the heirs are (or the estate’s representative), add them to the lawsuit as parties, and serve them properly. Courts will treat heirs as owners of the decedent’s share for purposes of partition.

Why heirs must be included

A partition action divides property among persons who hold an ownership interest. The court must join all persons who claim an interest in the property so it can distribute the property or sale proceeds properly. Illinois partition law is found in the Code of Civil Procedure; see 735 ILCS 5/15‑1 et seq. (Illinois General Assembly). For more on the Code of Civil Procedure, see: https://www.ilga.gov/legislation/ilcs/ilcs3.asp?ActID=1933.

Typical situations and legal effect

  • If the deceased sibling left a will and the estate is open, the executor or personal representative is usually the party to join initially. The representative stands in for the estate and the court can later distribute proceeds according to the will or probate outcomes.
  • If the deceased died intestate (without a will), the heirs-at-law (children, spouse, etc.) inherit the decedent’s share. Those heirs are necessary parties to a partition action because they hold the decedent’s interest.
  • If the decedent’s interest passed by operation of law (for example, joint tenancy with right of survivorship), then no heir inherits that share and you may not need to add heirs—title will have already changed. You should verify the type of ownership with a title search.

Step-by-step: how to add heirs to a partition action in Illinois

  1. Confirm the decedent’s ownership and how title passes. Do a title search and obtain the decedent’s death certificate. The title search shows whether the decedent held record title and the form of ownership (tenancy in common, joint tenancy, etc.).
  2. Check probate records. If the decedent’s estate is being probated, the personal representative (executor/administrator) is usually the proper party to join. Obtain the probate file or letters of office from the county probate court to identify the personal representative.
  3. Identify heirs. If there is no personal representative or the estate is not open, determine intestate heirs (spouse, children, parents, etc.). Use probate records, vital records, and public records. If you cannot locate heirs, the court can allow service by publication in some cases.
  4. Amend the complaint or file a motion to add parties. Practically, you (or your attorney) will file an amended complaint or a motion to join necessary parties to include the heirs (or the personal representative). The amended pleading should describe each heir’s claimed interest and a current address if known.
  5. Serve the new parties properly. Serve each added heir or the personal representative according to Illinois service rules: personal service when possible, or service by certified mail or publication when an heir cannot be located. If you must use publication, follow the court’s rules and file the required affidavits of diligent search.
  6. Protect minors, unborn or unknown claimants. If any heir is a minor, is incapacitated, or is unknown/unborn, the court may require appointment of a guardian ad litem or special representative to protect their interests during the partition. Request the guardian ad litem in your pleadings if applicable.
  7. If a party dies during the case, substitute the heirs or representative. If a co-owner dies while the partition case is pending, promptly notify the court and move to substitute the decedent’s estate representative or heirs as parties so the court has jurisdiction to distribute the decedent’s share.
  8. Be prepared for court orders about sale or holding funds. If the court orders a sale but some heirs were not located, the court can order sale and hold the proceeds in escrow or with the clerk until claimants appear or the court disposes of the funds under statute and court rules.

Practical documents you will likely need

  • Death certificate of the sibling.
  • Title report / abstract showing the decedent’s interest.
  • Probate file number or letters of office (if an estate is open).
  • Affidavit of heirship or genealogical proof (if no probate file exists).
  • Proposed amended complaint and proposed order for substitution/joinder.
  • Affidavit of diligent search (if you request service by publication).

What can go wrong and how courts commonly handle problems

  • If you fail to join a necessary heir, the court may not be able to divide the property effectively, and the missing heir could later challenge the sale or distribution. That can cause delays and extra expense.
  • If heirs are hard to locate, Illinois courts routinely allow service by publication after a diligent search. The court can order sale of the property and hold proceeds until rightful claimants come forward.
  • Disputes often arise over the value of the property, proposed sale versus division in kind, and allocation of costs and attorney fees. Expect the court to address these issues when all interested parties are before it.

Helpful Hints

  • Start with a title search. That tells you the record owner(s) and how title is held.
  • Check the county probate index for an open estate before trying to find heirs yourself.
  • Obtain the death certificate early; it shortens searches and supports joinder pleadings.
  • If heirs are unknown or unlocatable, prepare a thorough affidavit of your search to support service by publication.
  • If any heir is a minor or incapacitated, ask the court to appoint a guardian ad litem before final disposition.
  • Consider mediation with heirs before litigating; many partition disputes settle faster and cheaper that way.
  • Keep complete records of all notices, pleadings, and service attempts; the court will require them to allow nonstandard service methods.
  • Because partition cases mix property, probate, and civil procedure issues, consult an Illinois attorney experienced in property/partition matters to ensure correct joinder and service and to protect your rights.

Where to read the law: Illinois partition proceedings are governed by the Illinois Code of Civil Procedure (see 735 ILCS 5/15‑1 et seq.). You can review the Code of Civil Procedure on the Illinois General Assembly website: https://www.ilga.gov/legislation/ilcs/ilcs3.asp?ActID=1933. Your county court clerk can also point to local procedures and forms for joinder and publication.

Disclaimer: This article is for general informational purposes only and is not legal advice. It does not create an attorney–client relationship. Laws change and facts matter. Consult a licensed Illinois attorney to get advice that applies to your specific situation.

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.