Detailed Answer
Short answer: Under New Hampshire law, a partition action involving a co-owner who has been adjudicated incompetent is handled by naming and involving that person’s court‑appointed representative (usually a conservator or a guardian with authority over the estate) in the case. The representative stands in the incapacitated owner’s place for purposes of the litigation, and the court takes steps to protect the incapacitated owner’s interest before allowing a sale or distribution of the property.
This explanation assumes the co-owner has been adjudicated incompetent by a New Hampshire probate court and a court-appointed representative (guardian and/or conservator) is in place. It does not replace legal advice.
Who must be involved in a partition action?
A partition action must include all persons with an ownership interest in the property. If a co-owner has been adjudicated incompetent, the petitioner must name the incapacitated person and also the person who was appointed by the probate court to represent that person’s interests (typically a conservator for the estate; sometimes a guardian for the person if the guardianship order includes estate powers). The probate representative is the party who can legally answer for the incapacitated owner in the partition case.
Which courts are involved?
Partition actions are usually filed in the court with jurisdiction over real property disputes (in New Hampshire, that is typically the Superior Court). Guardianship and conservatorship matters are handled in the Probate Division of the Superior Court (sometimes called the Probate Court). Because these proceedings touch both property law and protective proceedings, you may see coordination between the probate file (for the guardianship/conservatorship) and the partition lawsuit.
Steps the plaintiff (or a co-owner) will generally follow
- File the partition complaint in Superior Court and identify all co-owners by name and interest.
- Identify the incompetent co-owner’s representative in the complaint (conservator/guardian) and serve them with the complaint and summons. Service must follow the court rules so the representative and the probate court are properly notified.
- The court evaluates whether the property can be physically divided among co-owners or whether a sale is necessary. If physical division is impracticable, the court commonly orders a sale and divides proceeds according to each co-owner’s share.
- If the sale will affect the incapacitated person’s assets, the probate court’s orders or the conservator’s statutory authority typically govern whether the conservator/guardian may agree to sale or must seek the probate court’s approval. The representative may have to petition the probate court for authority to agree to a sale or distribution, or to receive and manage sale proceeds for the incapacitated person’s benefit.
- The Superior Court often appoints a commissioner, referee, or special master to manage the sale (public auction or supervised sale) and report back. The court then approves the sale and orders distribution of the proceeds, but distribution affecting the incapacitated person may be limited until the probate court authorizes how to handle the funds.
Protections for the incapacitated owner
- The incapacitated owner’s representative must be given notice and an opportunity to be heard.
- The probate court may need to approve any sale or settlement that affects the incapacitated person’s estate.
- The court may require the conservator to account for proceeds, obtain a bond, or deposit funds into a supervised account for the incapacitated person’s benefit.
Common practical issues and clarifications
- If a guardian was appointed only over the person (not the estate), there may be a separate conservatorship or specific probate order needed so the guardian can act regarding real property and sale proceeds. Check the probate order carefully to see what authority was granted.
- If no conservator exists, a party might need to petition the probate court to appoint a conservator for the estate before the partition sale proceeds can be distributed or before a guardian can legally agree to a sale.
- Other co-owners sometimes prefer to buy the incapacitated owner’s share (a “buyout”) rather than force a sale. The conservator/guardian must obtain authority from the probate court to accept a buyout offer on the incapacitated person’s behalf.
- The court’s overriding concern is protecting the incapacitated person’s financial interest. Expect extra procedural steps and likely a delay while the probate court reviews any proposed sale or distribution affecting that person.
Relevant New Hampshire statutes and resources
Key statutes and resources to consult (you can review them online):
- New Hampshire statutes governing partition of real property (see the chapters on partition in the New Hampshire Revised Statutes). Example listing for partition statutes: New Hampshire Revised Statutes—search by chapter.
- New Hampshire statutes governing guardianship and conservatorship (these statutes explain appointment, powers, and duties of guardians and conservators): New Hampshire Revised Statutes—search for guardianship/conservatorship (RSA chapter 464-A and related chapters).
Note: The New Hampshire Revised Statutes are organized on the official General Court website. If you need exact section numbers and language for your situation, look up the partition chapter and the guardianship/conservatorship chapters on the NH General Court website or consult a New Hampshire attorney.
Helpful Hints
- Before filing a partition action, determine whether a conservator (for the estate) has been appointed; if not, consider a conservatorship petition first so the incapacitated owner’s estate is represented.
- Carefully review the probate court’s order appointing the guardian/conservator to know what powers the representative has (e.g., authority to sell real estate or to accept proceeds).
- Serve the guardian/conservator exactly as required by the court rules and the probate order; improper service can delay or invalidate the case.
- Expect coordination between the Superior Court (partition action) and the Probate Division (guardianship/conservatorship). You may need approvals or filings in both places.
- Consider negotiating a buyout or mediated settlement to avoid the cost and delay of a court-ordered sale. Any settlement involving the incapacitated person will likely require probate court approval.
- Keep detailed records of the property’s value, receipts of rents or expenses, and any offers — the conservator will need to account for funds and the Superior Court will need documentation for equitable distribution.
- Hire an attorney experienced in New Hampshire real property and probate law to ensure proper procedure and to protect the incapacitated owner’s rights and other co-owners’ interests.
Disclaimer: This article is for general information only and is not legal advice. It does not create an attorney-client relationship. For advice about a specific situation, contact a licensed New Hampshire attorney who handles real property and probate matters.