Short answer

Yes. In New Mexico partition cases, a court can protect the legal interests of unknown, unlocatable, unborn, minor, or legally incapacitated heirs by appointing a guardian ad litem (GAL) or other representative and by allowing alternative service (usually publication) after a court finds that the plaintiff used reasonable diligence to locate those parties. The court has authority to proceed with partition and to hold or distribute proceeds subject to later claim by a properly represented heir.

Detailed answer — how this works under New Mexico law

Partition actions ask the court to divide or sell real property owned by two or more people. When every co-owner is known and served, the court can order partition or sale and distribute the proceeds. Problems arise when some heirs or co-owners are unknown, cannot be located, are minors or incapacitated, or are unborn. New Mexico courts use a combination of procedural rules and equitable powers to protect those absent parties while still allowing the case to move forward.

1. Appointment of a guardian ad litem or other representative

When an heir is a minor, incapacitated, or otherwise needs representation, New Mexico courts may appoint a guardian ad litem or other court representative to protect that party’s interests in the partition action. For unknown or unlocatable heirs, courts commonly appoint a GAL or a curator to represent the interests of any person who may have a claim to the property but cannot personally appear. The GAL’s role is limited: investigate, evaluate the absent party’s likely interests, and advocate for a resolution that protects those interests while allowing the action to proceed.

2. Service by publication and the court’s finding of diligence

If a party cannot be personally served, plaintiffs typically ask the court for alternative service—most often publication. Before allowing publication, courts require evidence of reasonable efforts to find the missing person (for example, searches of records, mailings to last-known addresses, use of databases, or inquiries to relatives). If the court is satisfied that the plaintiff has exercised adequate diligence, it may authorize service by publication. The court often appoints or requires a GAL to represent any interested but unserved persons who might be affected by the partition.

3. Effect on distribution of sale proceeds

When the court orders partition by sale and some owners are unrepresented or served by publication, the court typically protects their share by withholding distribution, placing funds in escrow, or issuing payment into the registry of the court until a later successful claim resolves ownership. That way, the rights of absent or unknown heirs are preserved while the property is disposed of.

4. Practical standards courts use

• Court must find reasonable diligence to locate the missing/heir before allowing alternative service.
• Appointment of a GAL (or similar representative) is discretionary but routinely used to protect absentee interests, especially for minors and incapacitated persons.
• Courts will balance the need to resolve title and free the property from latent claims against the right of a potential heir to fair notice and representation.

5. What happens if a “missing” heir later appears?

If a previously unlocated heir later appears and proves entitlement, the court process commonly allows the heir to pursue their share subject to any prior rulings, distribution limitations, or escrowed funds. Timeliness, the adequacy of prior notice, and whether the heir was represented by a GAL will affect the heir’s remedies. Courts try to avoid unfair prejudice to later-appearing claimants, but finality also matters.

6. Where to find the governing rules

The procedures governing civil practice and alternate service are set out in New Mexico’s court rules and statutes. For text of New Mexico statutes and to search specific provisions, see the New Mexico Legislature’s statutes portal: https://www.nmlegis.gov/Legislation/Statutes. For New Mexico court rules (including rules on service, representation, and procedure) see the New Mexico Courts rules pages at: https://www.nmcourts.gov/rules/. Courts rely on those rules plus case law and equitable authority when resolving partition cases with missing or unknown owners.

Important: Statutes and court rules may specify timing for publication, notice content, and what constitutes reasonable diligence. If your case involves missing heirs, ask a lawyer to review the court rules and local practices that apply to your county.

Typical steps a court and a litigant follow in New Mexico partition actions with unknown or unlocatable heirs

1. Plaintiff files the partition complaint and lists all known owners and heirs.
2. Plaintiff attempts personal service on known parties and documents efforts to locate missing heirs.
3. If personal service fails, plaintiff asks the court for service by publication or other alternative service and provides proof of diligence.
4. Court may appoint a guardian ad litem or a curator to represent unknown, unlocatable, minor, or incapacitated persons.
5. Court resolves partition or orders sale; proceeds attributable to absentee interests may be held in escrow or paid into the court registry pending resolution.
6. If an absentee heir later appears, the court determines entitlement and whether funds or interests must be adjusted consistent with prior orders and notice provided.

Helpful hints

• Document all your search efforts before asking the court for service by publication — the court will expect credible, documented attempts to locate missing heirs.
• Expect the court to appoint a guardian ad litem if heirs are minors, incapacitated, or truly unknown; a GAL protects the absent party and helps the court move forward fairly.
• Be prepared for the court to require proceeds to be held in escrow or paid into court until claims by absent parties are resolved.
• If you represent a client who may later claim a share, save communications and proof linking them to the property — timely proof matters when contesting distributions after a sale.
• Consider hiring an attorney familiar with New Mexico partition practice early; these cases involve title, probate overlap, and strict notice rules.
• Check local court procedures — county practices can affect how publication, appointment of GALs, and escrow of funds are handled.