Overview
This FAQ explains who should be named as petitioners when someone files a civil action to partition real property in Indiana. It assumes no prior legal knowledge and outlines the usual parties, special categories you must consider, practical steps to identify parties, and the consequences of missing required people. This is educational information only and not legal advice.
Detailed answer — who to list as petitioners and who else to include
1. Petitioners = the people asking the court to divide or sell the land
In a partition action, the petitioners are the individuals (or entities) who start the lawsuit because they want the court to divide the property or order its sale. In Indiana, petitioners typically include:
- Any co-owner(s) who want partition. For example, if three tenants in common own a parcel and one or more of them want the court to partition, those owners may be petitioners.
- Any person with title who brings the action on behalf of other owners — for example, a trustee who holds legal title under a trust should be listed if the trustee sues to partition trust property.
2. Who is usually named as defendants (not petitioners) but must be included in the case
The court must know everyone who has a legal or equitable interest in the land. These people are usually named as defendants (so the court can determine their rights) rather than as petitioners. They include:
- Other co-owners who do not join the petition.
- Mortgage holders, lienholders, judgment creditors, or anyone holding recorded encumbrances.
- People with life estates, leaseholders with possession rights, or individuals with recorded easements that affect the property.
- Trust beneficiaries (the trustee is usually the proper party, but beneficiaries with present interests may need notice).
- Persons who claim title by adverse possession, unrecorded interests, or through inheritance — these must be identified and served if possible.
3. Special categories that require extra steps
- Minors and incapacitated persons: Indiana courts generally require a guardian ad litem or, in some cases, appointment of a guardian or conservator before finalizing disposition of property that affects a minor/incapacitated person.
- Unknown or unlocatable owners: The court may allow service by publication when a party cannot be found after reasonable effort. The petition should identify such persons.
- Decedents’ estates: If a co-owner died and title is in probate, the estate or personal representative must be a party.
- Trusts: If title is held in a trust, the trustee is the party of record; name the trustee. The trustee may need to represent the interests of beneficiaries or notify them per court rules.
- Bankruptcy: If a party is in an open bankruptcy case, the bankruptcy trustee may have an interest — consult bankruptcy counsel before proceeding.
4. Practical rule of thumb
Name as petitioners the co-owners who want relief. Then identify and join every person or entity with a recorded or known claim that could affect the property. The court needs all interested parties before it can make a final division or order a sale that binds those parties.
5. Why correct party listing matters
If you omit a necessary person, the court may not be able to grant full relief, or the judgment may be vulnerable to later collateral attack. Missing lienholders can result in unexpected liens surviving a sale. Missing heirs, guardianship issues, or unserved parties can delay the case or require reopening the matter.
How to identify who must be included
- Run a title search at the county recorder/registrar to find current owners, mortgages, and recorded liens.
- Check probate records for deceased owners whose estates may still control the interest.
- Search judgment and UCC records for potential creditors or lienholders.
- Review leases, recorded easements, and tax records for tenants or possessory interests.
- If you cannot find someone, document your efforts; courts may permit service by publication.
Filing and procedure notes (practical)
- Indiana uses civil procedure rules for joinder and necessary parties. Consult the Indiana Trial Rules on joinder to determine who must be included. See Indiana Judicial Branch Trial Rules: https://www.in.gov/judiciary/rules/trial-procedure/trial-rules/.
- Before filing, consider whether multiple co-owners should file together as joint petitioners — that can simplify service and reduce disputes.
- If minors or incapacitated persons are involved, the court will likely require a guardian ad litem. If trusts or estates are involved, name the fiduciary (trustee or personal representative).
- Include a complete legal description of the property in the petition and attach deeds or other documents showing interests.
Relevant Indiana resources
- Indiana Judicial Branch — Trial Rules: https://www.in.gov/judiciary/rules/trial-procedure/trial-rules/
- Indiana General Assembly (search statutes and code): https://iga.in.gov/
- Contact your county recorder/registrar to obtain recorded deeds and liens for the parcel.
Common example (hypothetical)
Three siblings (A, B, C) own land as tenants in common. A wants the property sold and brings a partition action. A may be the sole petitioner, but the petition must name B and C as parties. If a bank holds a mortgage, the bank must be named so the court can address that lien at sale. If one sibling is a minor, the court will require a guardian ad litem to represent that sibling’s interests.
Disclaimer
This information is educational only and does not constitute legal advice. For guidance about your specific situation, consult a licensed attorney in Indiana who can review your facts and help you determine the correct parties and procedure.