Detailed Answer

This FAQ explains who should be listed as petitioners on a partition lawsuit in Montana. It assumes no prior legal knowledge and uses plain language. This is educational only and not legal advice.

What is a partition lawsuit?

A partition lawsuit asks the court to divide or sell real property when co-owners cannot agree on how to use or divide it. In Montana, anyone who owns an interest in real property may ask the district court for partition. The suit seeks a judicial order dividing the property physically (partition in kind) or selling it and dividing the proceeds (partition by sale).

Who should be listed as petitioners?

“Petitioners” are the people (or entities) who start the partition action by filing the complaint. In Montana, the following are the parties you should generally list as petitioners when you file:

All co‑owners who want the partition: If multiple owners agree they want the property divided or sold, they can file together as co‑petitioners. Listing all cooperating owners as petitioners can simplify the case and avoid claims that a petitioner lacked standing.
Any single owner who alone requests partition: A single co‑owner who seeks partition can file alone. The other owners become defendants. The petitioner must have a present ownership interest (e.g., tenant in common, joint tenant, or owner under a deed).
The owner’s legal representative when the owner cannot act personally: If an owner is a minor, incapacitated, or otherwise legally incompetent, the guardian or conservator should appear as petitioner (or co‑petitioner) or file on the owner’s behalf. If the owner’s interest is held by an estate, the personal representative (executor/administrator) may be the petitioner.
Trustees or entities that hold title: If title is in the name of a trust, corporation, LLC, or partnership, the trustee or authorized representative (or the entity itself, through its authorized officer) should be listed as petitioner when that owner seeks partition.

Who should not normally be listed as petitioners — and how are they included?

Certain persons with claims against the property typically get named as defendants rather than petitioners:

Mortgagees and lienholders: Lenders, mechanics’ lien claimants, and judgment creditors that hold encumbrances on the property are usually named as defendants so the court can resolve their liens and determine how sale proceeds should be distributed.
People who claim an interest but do not want the partition: A co‑owner who objects to selling or dividing the property is typically a defendant. The court will hear their claim and decide the appropriate remedy.

What about parties who aren’t known or are hard to locate?

You must try to include every person who has a recorded ownership interest or a reasonable claimed interest in the property. If someone’s identity or location is unknown, Montana law allows the court to authorize service by publication or appoint a guardian ad litem to represent unknown or disputed interests. The court will require reasonable efforts to find and notify heirs, devisees, and other interested persons.

Are any parties indispensable under Montana law?

Montana follows general rules about joinder of necessary parties. If a person’s interest cannot be fairly resolved without them, the court may require they be joined in the case. For joinder rules and how the court handles necessary or indispensable parties, see the Montana Rules of Civil Procedure. Practical examples:

If an entire parcel is owned by three tenants in common, all three are necessary to fully adjudicate how to divide the land.
If a deed lists a deceased owner but their heirs have not been determined, the heirs (or their representative) are necessary so distribution is correct.

Practical checklist: Who to list as petitioners

Start with the current record owners on the deed. Any owner who wants partition can be a petitioner.
If multiple owners agree, list them all as co‑petitioners to streamline the case.
If an owner lacks capacity, list their guardian, conservator, trustee, or personal representative as petitioner or co‑petitioner as appropriate.
Do a title search to identify mortgagees, lienholders, and judgment creditors; name them as defendants so the court can determine priority and distribution.
If someone is unknown or cannot be located, follow Montana court procedures for service by publication and for appointing a representative for unknown interests.

Statutes and rules to consult

Relevant Montana resources (general references):

Montana Code Annotated, Title 70 (Property) — for statutes involving real property: https://leg.mt.gov/bills/mca/title_70/
Montana Code Annotated, Title 27 (Civil Actions) — for general civil procedure topics: https://leg.mt.gov/bills/mca/title_27/
Montana Rules of Civil Procedure — for joinder and necessary parties (see Rule 19 and related rules): https://courts.mt.gov/rules

Common scenarios and how to list petitioners

Scenario 1 — Two siblings own a cabin as tenants in common. One sibling wants the property sold and asks the court for partition. The sibling who filed is the petitioner; the other sibling is a defendant. If both siblings agree to sell, both should join as co‑petitioners.

Scenario 2 — Title is in the name of a trust and the trustee wants partition. The trustee signs the petition in the trust’s name and is listed as the petitioner (or the trust is listed and the trustee identified as its representative).

Scenario 3 — An owner died and the estate is open. The personal representative (executor) of the estate should file or be listed as petitioner on behalf of the estate.

Helpful Hints

Run a full title search before filing so you identify all recorded owners, heirs, lienholders, and encumbrances.
List as petitioners any owners who agree to the relief; name all others as defendants so the court can resolve competing claims.
If unsure whether someone is a necessary party, include them or consult an attorney — leaving someone out can delay or invalidate relief.
When owners are minors or incapacitated, appointing or identifying the proper guardian or representative at filing avoids later challenges.
If the property is in an entity’s name (trust, LLC, corporation), make sure the person who signs the petition has authority to act for that entity and state that authority in the petition.
Expect the court to require full disclosure of title history and a proposed method to divide or sell the property. Prepare maps, deeds, and a valuation or appraisal if possible.
Consider discussing settlement options (buyouts, partition in kind, or agreed sale) with co‑owners before filing. Courts may prefer agreed resolutions and may require mediation.

Next steps

If you plan to file a partition action in Montana:

Collect deed records, mortgage and lien information, and contact information for all owners.
Decide whether to file alone or with co‑owners as co‑petitioners.
Consider consulting a Montana attorney for help identifying necessary parties, preparing the petition, and handling service and joinder issues.

Disclaimer: This post is educational only and does not create an attorney‑client relationship. This is not legal advice. For advice tailored to your situation, consult a licensed Montana attorney.