FAQ — How does a partition action proceed in Nevada when one co-owner has been adjudicated incapacitated and has a court-appointed guardian or conservator?
Short answer
If a co-owner has been adjudicated incapacitated, the person who manages that co-owner’s property (usually a court-appointed conservator of the estate) must be involved in any partition action. Nevada law treats partition as a civil action in district court. The conservator (or guardian with authority over property) typically must be served and will act for the incapacitated co-owner, and the court will protect the incapacitated person’s property interest by requiring appointment of a guardian ad litem or by reviewing and approving any sale, buyout, or distribution. The court can order physical division when feasible, or a sale with proceeds distributed after court oversight.
Detailed answer
This explanation assumes a typical fact pattern: two or more co-owners hold title to real property in Nevada; one co-owner has been adjudicated incapacitated by a Nevada probate court and the court has appointed a guardian or conservator. The incapacitation judgment and the letters of appointment determine who may act for the incapacitated co-owner.
1. Identify the correct fiduciary and confirm authority
In Nevada, a court may appoint a guardian of the person and a conservator of the estate (property). If the appointment is only for a guardian of the person, that appointment does not give authority to sell or manage real property. You must determine whether the court issued a conservatorship (authority over assets) or only a guardianship of the person. Review the probate court’s order and the issued letters of conservatorship/guardianship to confirm what powers the fiduciary has.
Reference: Nevada guardianship and conservatorship statutes: NRS Chapter 159 (Guardianship and Conservatorship).
2. Who to name and serve in the partition complaint
A partition action is filed in district court where the property is located. The plaintiff(s) must name all co-owners as defendants. If a co-owner is incapacitated and a conservator/guardian has been appointed, the fiduciary should be named and served in place of (or in addition to) the incapacitated person. The court frequently requires proof of the fiduciary’s letters so the fiduciary can lawfully appear and defend or negotiate for the ward’s interest.
Reference: Nevada partition statutes and district court actions: NRS Chapter 40 (Actions concerning real property and partition).
3. Appointment of a guardian ad litem or court-appointed representative
If the fiduciary’s authority is unclear or a conflict arises, the district court handling the partition may appoint a guardian ad litem or other counsel to represent the incapacitated co-owner’s interests specifically for the partition case. The court’s goal is to protect the ward’s property and ensure any sale, partition, or settlement is fair and in the ward’s best interest.
4. Methods of partition and court supervision
Nevada courts typically allow one of two outcomes:
- Physical partition (allocation of separate portions of the land): The court will order physical division only if it is practicable without material injury to any party’s interest.
- Partition by sale: If physical division is impracticable or would cause significant loss of value, the court can order a sale and direct distribution of the proceeds among co-owners according to their shares. When a ward’s share is at stake, the court will review and approve the sale or the terms proposed by the conservator.
Because a ward’s property cannot typically be sold or transferred without proper fiduciary authority and often without court approval, the conservator will either seek court authorization to agree to a sale/buyout or will defend against the sale if it is not in the ward’s best interest.
5. Court approval and accounting
Any sale or distribution that affects the incapacitated co-owner’s interest generally requires the conservator to petition for court approval under the guardianship/conservatorship docket. The conservator must show the transaction benefits the ward and is consistent with duties under NRS Chapter 159. The conservator must also account for the proceeds in the guardianship case and follow any reporting requirements. The district court overseeing the partition will coordinate with the probate court as necessary to ensure proper notice and approval.
6. Practical timing and steps (summary workflow)
- Confirm whether a conservator of the estate exists and obtain copies of the letters and the court order adjudicating incapacity.
- File a partition complaint in the district court where the property sits and name the conservator/guardian (and the ward) as defendants.
- Serve the conservator and attach proof of service and a certified copy of letters so the fiduciary can respond.
- The court may appoint a guardian ad litem or require counsel to represent the ward’s property interests if needed.
- Proceed to determine whether physical division is feasible; if not, the court will order sale. Any sale affecting the ward will often require separate conservatorship-court approval.
- If sale occurs, the conservator will petition the probate court to approve sale terms and to account for and manage the ward’s proceeds.
- Court issues decree of partition and orders distribution of proceeds after all approvals and costs.
7. Common complications
- If the guardian has authority only over the person, someone must be appointed conservator of the estate before property transactions proceed.
- Creditors, liens, and encumbrances on the property complicate net distributions; the court will generally order those paid from sale proceeds.
- Inter-family disputes often lead to motions for appointment of an independent guardian ad litem or expert appraisal to protect the ward’s fair share.
- Timing: guardianship/conservatorship proceedings can add delay because the conservator may need specific court permission to settle or consent to a sale.
Helpful Hints
- Confirm the fiduciary type: Ask for certified copies of the court’s order and the letters of appointment. If the fiduciary lacks authority over property, file for conservatorship of the estate or ask the probate court to grant the necessary powers.
- Serve the right parties: Name and serve the conservator (not just the ward) so the case can proceed without jurisdictional defects.
- Request a guardian ad litem early when the ward’s interests might conflict with other parties.
- Obtain at least one independent appraisal before agreeing to physical division or sale. Courts often rely on impartial valuations for fairness.
- Consider mediation or buyout: A buyout by other co-owners, approved by the probate court for the conservator, can be faster and less costly than sale at auction.
- Expect accounting duties: The conservator will likely need to petition the probate court to approve distribution of proceeds and to file an accounting for the ward’s share.
- Get specialized help: Partition cases that involve a protected person involve both real property and probate law. A lawyer experienced in both areas can help navigate filings and required court approvals.
Where to look in Nevada law
Relevant Nevada statutory chapters include the district-court partition provisions and the guardianship/conservatorship statutes:
- Partition and related civil actions: NRS Chapter 40
- Guardianship and conservatorship (powers, duties, accounting, sale of ward’s property): NRS Chapter 159
Final note and disclaimer
This article explains general Nevada procedures and common issues that arise when a co-owner in a partition action is incapacitated and has a court-appointed fiduciary. It uses hypothetical, illustrative facts and does not cover every possible variation. This is educational information only and is not legal advice. For guidance tailored to your situation, consult a Nevada attorney experienced in probate/conservatorship and real property litigation.