Detailed Answer
When an owner of real property dies in Massachusetts, that owner’s ownership interest does not disappear — it passes to whoever takes under the decedent’s will or, if there is no will, to the heirs under Massachusetts probate law. A partition action to divide or sell real property requires that all persons who have an ownership interest in the property be included so the court can make a final order that binds everyone with an interest. See Massachusetts General Laws, Chapter 240 (actions for partition) for the court’s authority to compel partition: M.G.L. c.240 §1.
Practically, that means you must identify and join the decedent’s successors — either the personal representative of the decedent’s estate (if probate has been opened) or the heirs/devisees directly (if no personal representative is acting). If an estate has been opened in probate, the estate’s executor or administrator is typically the proper party to join because that person represents the decedent’s interest in the property. If no estate has been opened or if the heirs are already known and identified on the title, you should name each heir or devisee as a defendant in the partition complaint.
If the decedent’s heirs cannot be identified or located, Massachusetts practice allows steps to give notice to unknown or unlocatable parties (for example, service by publication or naming “unknown heirs and devisees”) and the court can appoint substitute procedures so the partition can proceed. You should expect the court to require reasonable efforts to locate heirs and to approve any method of giving notice to unknown or nonresident persons. The Massachusetts court rules govern service and substitution of parties; see the Massachusetts Rules of Civil Procedure for details: Mass. R. Civ. P.
If a co-owner dies after the partition action has already begun, you must formally substitute the decedent’s successor for the deceased party so the record correctly reflects who has the interest. Substitution or joinder of parties can be done by motion under the civil rules and by adding the personal representative or heirs into the pending case. If minors or persons under disability are involved, the court will order representation for them (for example, appoint a guardian ad litem or require a conservator to represent their interest) before finalizing partition or a sale.
Key legal steps, summarized:
- Confirm whether the decedent’s estate has been opened in Probate — if yes, join the personal representative (executor/administrator).
- If no probate is open, identify heirs or devisees (title records, death certificate, estate planning documents) and name them as defendants in the partition complaint.
- If heirs are unknown or cannot be found, ask the court for permission to use alternative notice (e.g., publication) and name “unknown heirs and devisees” as necessary defendants.
- If a party dies during the case, file a motion to substitute the successor (personal representative or heirs) so the case can continue and the judgment will bind the correct persons.
Because partition litigation affects title and real property rights, courts are careful to require proper notice and correct party joinder so any final judgment is binding. For background on probate and how property passes at death, see the Massachusetts Uniform Probate Code chapter: M.G.L. c.190B.
Finally, consider whether title records already list the decedent’s interest and who is identified as successor on any deed records. A quiet-title or probate proceeding may be required in some cases before or in connection with partition to clear title or to determine the decedent’s successors.
Helpful Hints
- Start with a title search: identify all recorded owners, mortgages, liens, and any probate filings. This tells you who must be named in the partition complaint.
- If a probate estate is open, name the personal representative — that person represents the decedent’s ownership interest in court.
- If no probate was opened, list heirs and devisees by name in the complaint. Use certified death certificates and any known estate planning documents to support your pleadings.
- For missing or unknown heirs, ask the court to allow alternative service (publication) and name “heirs and devisees, known and unknown” to protect the final decree.
- If a party dies during the case, move quickly to substitute the successor in interest to prevent delays and to ensure any decree binds the correct persons.
- If minors or legally incapacitated persons may inherit, request the court appoint a guardian ad litem so their interests are represented before the court approves partition or sale.
- Consider opening a short probate administration if heirs are unknown — a probate file centralizes identity information and gives you an official representative to join in the partition.
- Document and preserve service attempts. Courts require proof of proper notice before entering orders that affect title.
- Consult an attorney experienced in Massachusetts real estate and probate practice early — small procedural mistakes (misnaming parties, improper service) can delay or invalidate a partition judgment.
Important disclaimer: This article explains general Massachusetts procedures and is for educational purposes only. It is not legal advice and does not create an attorney–client relationship. For advice about a specific situation, consult a licensed Massachusetts attorney.