Indiana: Filing a Partition Action to Divide Inherited Property

Overview

This FAQ-style guide explains the typical steps and practical issues involved in using Indiana civil court procedures to divide real property owned jointly when one co-owner refuses to cooperate. It covers who must be joined, what documents you need, how the court decides whether to divide the land or order a sale, timelines, likely costs, and when to consult an attorney.

Disclaimer: This is general information and not legal advice. For advice about your specific situation, consult a licensed Indiana attorney.

Detailed answer: How a partition action works in Indiana

What a partition action is

A partition action is a civil lawsuit that asks an Indiana court to divide or sell real property when co-owners cannot agree about possession or disposition. Indiana’s laws governing partition actions appear in Title 32, Article 28 of the Indiana Code. See Indiana Code, Title 32, Article 28 (Partition of real estate): https://iga.in.gov/laws/2024/ic/titles/32#32-28.

Who can file

Any person who holds an ownership interest in the real estate (fee simple, life estate, tenancy in common, etc.) may file. The plaintiff must name as defendants all other persons with recorded ownership interests and any parties with recorded liens or other interests that could affect the property (mortgages, judgment liens). The court must have the property’s county jurisdiction; file in the circuit or superior court for the county where the property lies.

Typical step-by-step process

1. Confirm ownership and title issues. Gather the deed(s), probate paperwork (if the property came through a decedent’s estate), title insurance policy (if any), mortgage statements, and a recent county property tax bill. If heirs own as tenants in common, a partition action is normally available. If the title shows a survivorship/joint tenancy arrangement, the ownership consequences may differ.
2. Try to resolve without court. Send a written demand asking for partition, offer to buy out the other owner, request a sale and split of proceeds, or propose mediation. Courts expect parties to attempt reasonable settlement efforts before litigating.
3. Hire counsel or draft a complaint. If settlement fails, prepare a partition complaint. The complaint identifies the property, the plaintiff’s interest, all other owners and lienholders, and the relief sought (partition in kind or partition by sale). Include a legal description of the property and attach supporting documents (deeds, probate order, death certificate if relevant).
4. File in the proper county court and serve parties. File the complaint in the circuit or superior court where the land is located and pay the filing fee. Serve all defendants with the summons and complaint per Indiana Rules of Trial Procedure. If some defendants cannot be located, the court may allow substituted service or publication.
5. Preliminary proceedings and joinder of interested parties. The court may require that interested parties be added (creditors, mortgagees, lienholders). Those parties have rights to protect their interests in any sale or division.
6. Request partition in kind or sale. Indiana courts prefer a partition in kind (physically dividing the land) if it is practical and fair. If physical division is impractical or would substantially reduce value, the court can order a sale and divide the net proceeds among owners according to their shares. The court decides based on evidence and often appoints commissioners to examine and report.
7. Appointment of commissioners or referees. The court commonly appoints neutral commissioners to survey the property, prepare a proposed division (map), or manage a sale. Parties may object to the commissioners’ report and ask the court for modifications.
8. Sale if required. If the court orders a sale, it will set procedures (public auction or private sale under court supervision). Sale proceeds pay liens, mortgage(s), taxes, costs, and commissions; the remainder divides among co-owners as ordered by the court.
9. Distribution and final judgment. After final accounting and paying encumbrances and costs, the court enters a final order distributing proceeds or confirming the division. Parties may appeal within the statutory appeal period if they believe the court erred.

Evidence and documents you should prepare

• Deed(s) and chain of title
• Probate court orders, will, or letters testamentary/administration (if inherited)
• Death certificate of decedent, if relevant
• Mortgage statements and lien records
• Property tax statements and assessments
• Recent survey or plat (if available)
• Photos and documentation of improvements, leases, or rents
• Any written communications about offers, buyouts, or settlement attempts

Timing and likely costs

How long depends on complexity and cooperation. A straightforward partition in kind with cooperative parties can close in several months. A contested case with sale, lien disputes, or appeals can take a year or longer. Costs include filing fees, service fees, attorney fees, commissioner/surveyor fees, sale costs and possibly broker commissions. If you prevail, the court sometimes orders costs apportioned among co-owners, but attorney fees are not always recoverable automatically.

Common complications

• Disputed ownership shares or claims from unseen heirs
• Mortgages, tax liens, or judgment liens that must be resolved before distribution
• Physical division will damage value or is impractical (leading to sale)
• Missing or unknown defendants who require service by publication
• Encumbrances that reduce proceeds below expectations

Where the law is found

Indiana’s partition statutes are located in the Indiana Code, Title 32, Article 28. See: https://iga.in.gov/laws/2024/ic/titles/32#32-28. For court contacts, local rules, and filing instructions, consult the Indiana judicial branch: https://www.in.gov/courts/.

When to get an attorney

Consider hiring a lawyer if any of the following apply: ownership or title is unclear; multiple liens exist; one or more co-owners actively oppose partition; the property is high value; tax or environmental issues exist; or you anticipate significant factual or legal disputes. An attorney can handle pleading joinder of parties, locate missing heirs, obtain necessary surveys, and argue for the most favorable remedy (partition in kind vs sale).

Helpful hints

• Try settlement first: Offer a buyout or a broker-assisted sale before filing—courts appreciate good-faith settlement efforts.
• Document everything: Keep written records of demands, offers, and communications with co-owners; courts rely on the record.
• Obtain a title check early: A title search reveals liens and other parties who must be served and paid from sale proceeds.
• Get a survey if division in kind is possible: A survey informs whether physical division is feasible without spoiling value.
• Plan for lien payoff: Expect mortgages, taxes, and recorded liens to be satisfied from sale proceeds before owners receive net distribution.
• Consider mediation: Courts may require or encourage mediation before a contested hearing; it can save time and money.
• Budget for court costs: Include filing fees, service fees, survey/commissioner fees, and legal fees when evaluating whether to proceed.
• Check local court rules: Filing and service procedures vary by county; consult the local circuit or superior court clerk or the Indiana judiciary site: https://www.in.gov/courts/.

Next practical steps

1. Collect title and probate documents and a recent tax bill.
2. Send a written demand to the co-owner offering options (buyout, sale, mediation).
3. If no agreement, contact an Indiana real property attorney to evaluate filing a partition complaint and to identify all required parties and potential liens.

Again, this is general information, not legal advice. An attorney can explain how the statutes apply to your unique circumstances and represent your interests in court.