Can heirs of a deceased sibling be included in a partition action in Rhode Island (RI)? | Rhode Island Probate

Detailed Answer — How heirs of a deceased co-owner are brought into a Rhode Island partition action

This answer explains, in plain language, how to include heirs when a co-owner (for example, a sibling) dies and someone has filed or is planning a partition action to divide or sell jointly owned real estate in Rhode Island. This is educational information only and not legal advice.

Basic rule

When a person who holds an ownership interest in real property (for example, a sibling who owned a 1/3 interest as a tenant in common) dies before or during a partition action, the deceased person’s interest does not disappear. Their interest passes under their will or by intestacy to their personal representative and/or heirs. Those successors are necessary or proper parties to a partition action because a court cannot divide or sell land without resolving the rights of everyone who has an ownership interest in the property.

In Rhode Island, partition actions and property rights are governed by the state’s property and civil procedure laws. For general reference to Rhode Island statutes on property and probate, see the Rhode Island General Laws (Title 34 for property and Title 33 for probate): https://www.rilegislature.gov/Statutes/.

Who to add as parties

Which persons you must add depends on the estate situation:

If the deceased owner’s estate is open and a personal representative (executor or administrator) has been appointed by the probate court, that personal representative is the proper party to represent the deceased owner’s interest in the partition. You can join the personal representative in the partition action.
If no personal representative has been appointed yet, the rightful heirs (persons who inherit under the decedent’s will or under Rhode Island intestacy rules) may be parties. If heirs are known, name them individually in the complaint or an amended complaint.
If heirs are unknown or cannot be located, you typically ask the court for permission to proceed with special service (for example, service by publication) and may request appointment of a guardian ad litem or a commissioner to represent the interests of missing or unknown parties.

Procedural steps to add heirs in Rhode Island

Below are common steps used in Rhode Island courts. Exact filings and procedures can vary by county and by whether the estate is already in probate, so check local court rules or consult a lawyer.

Identify whether the estate is open: Check probate records (or ask the party who is decedent’s family) to see if a will was filed or administration started. If an estate is open, obtain the name and contact information for the personal representative and the probate file/letters.
If the estate is open, join the personal representative: File an amended complaint or a motion to join parties that names the personal representative as a party on behalf of the decedent’s interest. Serve the personal representative with process (a copy of the amended complaint and summons) consistent with Rhode Island court rules.
If no personal representative exists, identify heirs: Determine heirs from the decedent’s will or, if no will, under intestacy. If heirs are known, file an amended complaint naming each heir as a defendant (or plaintiff, if they seek partition themselves).
If heirs are unknown or unlocatable: File a motion asking the court for permission to serve by publication or to appoint a guardian ad litem to represent missing parties. Rhode Island courts allow alternative service when necessary to protect the process of litigation. The court may require notice steps such as publication and an affidavit of due diligence in searching for heirs.
Use the court’s substitution procedures if the case is already pending: If a co-owner named in an existing complaint dies while the case is pending, file a motion and proposed order substituting the personal representative or heirs for the deceased party. Federal courts use Rule 25 for substitution on death; Rhode Island courts follow similar procedures under their civil rules and local practice—check local Superior Court rules for the preferred form and process.
Provide probate proof if required: Courts commonly ask for evidence of appointment (letters testamentary or letters of administration) or for probate court records showing the heirs. Be prepared to file certified copies from the probate court or affidavits explaining why heirs are named.

Typical court outcomes

Once heirs or a personal representative are properly before the court, the partition can proceed. The court can:

Order a physical division if the property can be fairly divided; or
Order a sale and divide the net proceeds among the owners (including the deceased owner’s estate or heirs) according to each owner’s share; or
Resolve liens, mortgages, claims by creditors against the decedent’s interest, or competing claims to title before distribution.

Hypothetical example

Suppose three siblings (A, B, and C) own a house as tenants in common. A dies intestate before the partition. B files a partition action. B must add A’s successor(s): either A’s personal representative (if an estate has been opened) or A’s heirs (for example, A’s two children). B files an amended complaint naming those successors, serves them with process, and continues. If an heir cannot be located, B asks the court for permission to serve by publication and to appoint a guardian ad litem to protect that heir’s interest.

Key Rhode Island legal references

Relevant sources include the Rhode Island statutes on property and probate and the Rhode Island rules of civil procedure. For general statute navigation, see the Rhode Island General Assembly statutes page: https://www.rilegislature.gov/Statutes/. For specific local procedure, check the Superior Court’s civil rules and local rules in the county where the property lies.

Disclaimer: This information is educational only and not legal advice. It does not create an attorney-client relationship. For legal advice about your situation, consult a licensed Rhode Island attorney who can review the facts, probate status, and local court rules.

Helpful Hints

Start with the probate court: Search probate records for the decedent’s estate before filing to learn whether an executor or administrator exists.
Name parties precisely: Use full legal names and identify successors by relationship (e.g., “Jane Doe, personal representative of the estate of John Doe, deceased” or “Mary Doe, heir of John Doe, deceased”).
Gather proof: Get certified copies of letters testamentary/administration or a probate docket sheet to attach to filings.
Don’t skip service rules: Proper service is essential. If heirs live out-of-state, follow long-arm or service-by-mail rules as required.
If heirs are missing, document your search: Courts expect affidavits about efforts to locate missing heirs before allowing service by publication.
Consider temporary relief: If the property is deteriorating or subject to expenses, ask the court for interim orders (e.g., payment of taxes or maintenance) to preserve value while parties are joined.
Consult local procedural guidance: County-level practice can affect forms, filing fees, and hearing scheduling—check the Superior Court clerk’s office in the county where the property is located.