What to expect when a co-owner is incapacitated and a guardian exists (Indiana)

Quick summary: When one co-owner of real property has been adjudicated incapacitated and a court has appointed a guardian, a partition action can still proceed in Indiana. The guardian of the estate represents the incapacitated owner in property litigation, but the guardian generally must obtain the probate court’s approval before selling or conveying the ward’s real property or accepting certain settlements. If there is no guardian for the property interest, the court handling the partition will take steps to protect the incapacitated owner’s rights (for example, appointing a guardian ad litem or requiring a probate-court petition). This article explains the typical steps, roles, and protections under Indiana law and points you to the applicable statutes and resources.

Detailed answer — step-by-step overview under Indiana law

1) Confirm the guardianship and the guardian’s authority

Before filing or responding to a partition petition, determine whether the incapacitated co-owner has a court-appointed guardian and whether that guardian is appointed for the person, the estate, or both. Only a guardian of the estate (or a conservator with equivalent powers) has authority to manage or litigate about the ward’s property. Ask the guardian for a copy of the Letters of Guardianship or Letters of Appointment to confirm the scope of authority.

2) Filing the partition petition and service

Partition suits commence in the county court that has jurisdiction over real property where the land is located. The petitioner names all co-owners as defendants. If one co-owner is incapacitated with a court-appointed guardian, the petitioner should name the guardian as the representative of the incapacitated co-owner and attach proof of the guardianship to the petition. The guardian must be properly served with the petition so the guardian can defend the ward’s interest.

3) If there is no guardian of the estate

If no guardian exists for the property interest, the partition court will take steps to protect the incapacitated person’s property interest. Typical protections include appointing a guardian ad litem or requiring that a probate/guardianship proceeding be opened so someone with authority can represent the incapacitated owner. The goal is to make sure the incapacitated owner’s economic interests are represented before any sale or distribution.

4) Role of the guardian in the partition action

The guardian of the estate acts on behalf of the ward in property litigation. The guardian can:

file an answer and participate in discovery;
negotiate buyouts or settlements that affect the ward’s share; and
consent to partition in kind (physical division) when appropriate.

However, when a proposed outcome would sell or permanently transfer the ward’s real property or substantially change the ward’s financial position, the guardian usually must petition the probate court for approval. The probate court’s review protects the ward from unfair bargains and ensures the transaction is in the ward’s best interest.

5) Partition remedies and how the guardian’s required approvals affect them

Common partition outcomes include:

partition in kind (dividing the property among co-owners if practicable);
sale of the property and distribution of proceeds among co-owners; and
one co-owner buying out the others based on appraisal or agreement.

If the court orders a sale or the parties agree to sell, the guardian will likely need probate-court authorization to permit the ward’s interest to be sold or conveyed. That may require a separate petition in the guardianship (probate) case seeking permission to sell the ward’s real estate or approve a compromise. The probate judge may require an independent appraisal, a hearing, notice to interested persons, and other safeguards before granting authority.

6) Court-appointed representatives and additional protections

The partition court may also appoint a neutral representative (attorney or guardian ad litem) to represent the incapacitated owner’s interests in the partition case. The court can require accounting, bonding, or additional notice. These protections ensure transactions affecting the ward are fair and transparent.

7) Practical litigation steps and timing

Typical procedural steps include:

petition filed and all parties served (including guardian);
preliminary hearing, pleadings, and discovery;
valuation (appraisal) of the property;
consideration of partition in kind vs. sale;
if sale or conveyance involves the ward’s interest, a probate-court petition for authority; and
final order dividing title or sale proceeds and closing the case.

Timing depends on complexity. If probate-court approval is needed, expect additional weeks to months for that process (notice periods, hearings, and possible requirements such as appraisals or publication).

8) Which courts handle what

Partition actions are typically in the civil division of the circuit or superior court where the property is located. Guardianship matters are handled in the probate division of the same court system. Because a partition can implicate guardianship authority, the two court processes can overlap; coordinating filings between the civil and probate dockets is common to avoid delays and ensure proper judicial approvals.

Relevant Indiana statutes and resources

Key places to review the statutory text and further procedural detail:

Indiana Code — Title 32 (Property): general statutory provisions governing property and related civil actions: https://iga.in.gov/laws/2023/ic/titles/32
Indiana Code — Title 29 (Probate and Guardianship): statutes on guardianship, powers of a guardian of the estate, and required court approvals: https://iga.in.gov/laws/2023/ic/titles/29

(These links go to the official Indiana General Assembly (IGA) site. For precise sections that affect your case — for example, the statute that outlines a guardian’s authority to sell or mortgage real property — review Title 29 and consult the probate rules for your county.)

Helpful Hints

Obtain certified proof of guardianship (Letters of Guardianship/Letters of Appointment) early. Those documents show whether the guardian can act for the ward’s property.
Check whether the guardian is appointed only for the person or also for the estate. A guardian of the person cannot sign property conveyances or litigate property matters unless the probate court grants additional authority.
Expect the guardian to need probate-court permission to sell or convey the ward’s real property. Plan for that extra step and timing.
Gather these documents before filing or settlement discussions: deed, current mortgage or lien information, tax records, title report, and any prior appraisals.
Consider mediation or buyout if co-owners want to avoid delays and costs associated with sale and probate approval. The guardian can negotiate but may still need court approval for certain transactions.
Ask the court for appointment of a guardian ad litem or independent counsel for the ward if there is any question whether the guardian’s interests conflict with the ward’s.
Work with an attorney familiar with both partition and guardianship law; the interaction between civil and probate dockets is nuanced and procedural mistakes can cause delays or invalidate transactions.
Be mindful of tax consequences and possible capital gains liabilities from sale or buyout; consult a tax advisor as needed.

Where to find local procedural rules and forms: Look up the probate division rules and civil procedure/local rules for the county where the property sits. County court clerks and the Indiana Judicial Branch website provide local forms and guidance.

Next practical steps

Confirm the guardianship status and request certified Letters of Guardianship.
Decide whether to pursue partition in kind, negotiate a buyout, or seek a sale.
If a sale or transfer of the ward’s interest is likely, coordinate with the guardian to file the necessary petition in probate court seeking approval.
Consult an attorney who handles both partition actions and guardianship matters to coordinate filings and protect the incapacitated owner’s and other co-owners’ interests.

Disclaimer: This article explains general legal principles under Indiana law and is for educational purposes only. It does not constitute legal advice and does not create an attorney-client relationship. For advice about a specific situation, consult a licensed Indiana attorney who handles partition and guardianship matters.