Short answer: In Maryland, a partition action can proceed when one co-owner has been adjudicated incapacitated and has a court-appointed guardian. The guardian stands in for the incapacitated co-owner and must be served and allowed to defend the ward’s property interests. The court will protect the ward’s interest by requiring proof of the guardian’s authority, by approving sales or transfers affecting the ward’s property, and by appointing representatives (for example, a guardian ad litem or a commissioner) if needed to protect the ward’s rights. The underlying partition process (partition in kind or sale and distribution) follows the same general rules as for competent co-owners, with additional procedural safeguards for the ward.

Not legal advice. This article explains general Maryland law and is for educational purposes only. Consult a Maryland attorney about any specific situation.

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

When one co-owner has been adjudicated incompetent and a guardian has been appointed, these are the typical steps and legal issues you should expect in a Maryland partition action:

1. Who is the proper defendant and how to serve them?

   The guardian of the incapacitated co-owner must be named as the party who represents the ward’s property interest in the partition action. The plaintiff should serve the guardian with the partition complaint and all required process so the guardian has notice and an opportunity to respond. If a guardian has not yet been appointed, the court will require someone to represent the incapacitated person’s interests (often a guardian ad litem or next friend).

2. Guardian’s authority and required court approvals

   The guardian must have legal authority to act for the ward with respect to real property. Maryland guardianship law and the letters of guardianship specify what the guardian can do. If the partition will result in the sale of the ward’s share of the property or a transfer that affects the ward’s estate, the guardian may need prior approval from the court that appointed the guardian (the probate/circuit court handling the guardianship). Courts require this oversight to protect the ward’s assets and ensure any sale or settlement is in the ward’s best interest.

   For more on guardianship practice and procedure in Maryland, see the Maryland Courts’ guardianship information: https://www.mdcourts.gov/family/guardianship. For the relevant Maryland statutory framework for guardianship and fiduciary duties, see the Maryland Code (Estates & Trusts / Probate statutes): https://mgaleg.maryland.gov/mgawebsite/Laws/StatuteText?article=et.

3. Partition in kind vs. partition by sale

   The circuit court will first consider whether the property can be divided physically (partition in kind). If a fair physical division is impracticable, the court may order a partition by sale and appoint a commissioner to sell the property and distribute proceeds. Whenever the sale affects a ward’s interest, the guardian must demonstrate that the sale is authorized and fair for the ward, and the court may require additional safeguards (appraisals, bond, oversight, or a hearing). Maryland partition rules and practice are governed by the Real Property statutes and the circuit court’s procedures; see Maryland Real Property law: https://mgaleg.maryland.gov/mgawebsite/Laws/StatuteText?article=rp.

4. Protections the court commonly requires

   • The guardian must produce letters of guardianship or other proof of authority.
   • The court may appoint a guardian ad litem to represent the ward’s interests in the partition case if appropriate.
   • The court may require an independent appraisal so proceeds reflect fair market value.
   • If proceeds are paid to the guardian for the ward, the guardian may be required to account for those funds in the guardianship matter.
   • The court may order a bond, escrow, or additional oversight to protect the ward’s funds until final accounting or distribution through the guardianship or probate process.

5. Outcomes and final orders

   Typical outcomes are: (a) the property is divided (partition in kind) and the ward retains a distinct portion; (b) the court orders sale and distribution of net proceeds among co-owners, with the guardian receiving the ward’s share subject to court supervision; or (c) co-owners reach a negotiated buyout where one co-owner (or a third party) purchases the ward’s interest with court-approved terms. In all cases that affect the ward’s interest, the guardianship court must be satisfied that the transaction is in the ward’s best interest.

6. Coordination between the partition case and the guardianship case

   Expect coordination between the circuit court handling the partition and the court that appointed the guardian (often the probate or circuit court). That coordination ensures sales or distributions affecting the ward are approved and any receipts are accounted for in the guardianship file. Counsel for other co-owners should confirm the guardian’s authority and whether guardianship-court approval is needed before closing any sale.

7. Timing and procedure considerations

   Partition cases can be contested and slow. When a ward is involved, additional procedural steps (service on the guardian, guardianship-court approvals, hearings, appointment of commissioners or guardian ad litem) typically extend timelines. Start early, gather guardianship paperwork, and anticipate additional evidentiary requirements.

Helpful hints — practical checklist for a Maryland partition involving a ward

• Confirm the guardianship: obtain and file a certified copy of the letters of guardianship or court order that shows the guardian’s authority to act for the ward.
• Serve the correct party: name and serve the guardian (not the incapacitated person) in the partition complaint; also serve any attorneys of record in the guardianship matter.
• Check the guardian’s power: determine whether the guardian can sell or consent to partition, or whether prior court approval in the guardianship case is required.
• Request appraisal early: get a neutral, licensed appraisal so the court can review whether a sale is fair to the ward.
• Expect the court to appoint a guardian ad litem if there’s any dispute about the ward’s interests.
• Coordinate approvals: if a sale is proposed, make closing contingent on the guardianship court’s written approval to avoid post-closing reversal or accounting issues.
• Preserve records: the guardian must account for money received for the ward; keep receipts, closing statements, and court orders to simplify accounting to the guardianship court.
• Consider negotiation or buyout: a negotiated buyout that pays the ward’s fair share, with the guardianship court approving the transaction, often resolves matters faster and with less expense than a contested partition sale.
• Get counsel: both co-owners and guardians should consult lawyers experienced in Maryland real property and guardianship law to protect the ward’s and co-owners’ rights.

Where to find the relevant Maryland law and court resources

• Maryland Courts — Guardianship information and resources: https://www.mdcourts.gov/family/guardianship
• Maryland Code — Real Property (partition and related provisions): https://mgaleg.maryland.gov/mgawebsite/Laws/StatuteText?article=rp
• Maryland Code — Estates & Trusts (statutes governing guardianship and fiduciary duties): https://mgaleg.maryland.gov/mgawebsite/Laws/StatuteText?article=et
• Maryland Courts — self-help and forms pages for circuit court matters: https://www.mdcourts.gov/legalhelp