Can heirs of a deceased sibling be included in the partition action and how do I add them? (SD) | South Dakota Probate | FastCounsel
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Can heirs of a deceased sibling be included in the partition action and how do I add them? (SD)

August 8, 2025 6 min read

Detailed Answer

Short answer: Yes — heirs of a deceased sibling can and generally must be included in a partition action if the deceased sibling owned (or had an interest in) the property being partitioned. You add them by joining the proper legal party for the deceased interest (the personal representative/executor if there is an open probate, or the heirs at law if there is no probate) and serving them according to South Dakota law. Courts will not divide property without bringing in all parties who claim an interest in it.

Why heirs must be included

A partition action is a request to the court to divide or sell property owned by two or more persons. The court needs to include every person who holds an ownership claim so that the final order binds everyone and fully resolves title. If a sibling on the title died before the partition, that sibling’s ownership interest typically passed to someone else — either under a will (to a devisee) or by intestate succession (to heirs). Those successors are necessary parties because they now hold the decedent’s share.

Who to join for a deceased owner

  • If the decedent’s estate has opened probate and a personal representative (executor/administrator) has been appointed: join the personal representative and, if appropriate, the estate as a party.
  • If no probate has been opened: join the decedent’s heirs at law (the people who inherit under South Dakota intestacy rules).
  • If the decedent had a valid will but the estate hasn’t been probated: you typically join the named executor (if appointed) or the beneficiaries once the executor is properly before the court; otherwise the court may require probate or a limited proceeding to identify and bring in those beneficiaries.
  • If any heir or beneficiary is a minor, incapacitated, or unknown: the court may require appointment of a guardian ad litem or other protective steps before joining them.

Typical steps to add heirs in South Dakota

  1. Confirm ownership and whether the decedent’s interest transferred: examine the deed, chain of title, and any recorded transfers.
  2. Check probate records to see if an estate is open and whether a representative has been appointed. South Dakota’s probate statutes and local court records will show this. (See South Dakota statutes on probate and intestacy: SDCL Title 29A, Chapter 2 (Intestate Succession).)
  3. If there is an estate and a personal representative: name the personal representative (and the estate, if appropriate) as a defendant or party in your partition complaint.
  4. If there is no probate: identify the decedent’s heirs. File your partition complaint naming those heirs as parties. If some heirs are unknown or cannot be located, ask the court for permission to serve by publication and/or request appointment of a guardian ad litem for unknown or minor heirs.
  5. Amend your complaint if heirs are discovered after filing. South Dakota civil procedure allows amendment and joinder of necessary parties; you will usually file an amended complaint and obtain service on newly identified heirs.
  6. Provide proper service of process on all added parties according to South Dakota rules so the court acquires jurisdiction over them. If heirs live out of state or cannot be located, the court may allow alternative service methods (publication, certified mail, etc.).
  7. If necessary to clear title before partition, consider opening a limited probate or a proceeding to determine heirs so the court has an official record of who should be joined.

Practical examples (hypothetical)

Example A: Sibling A and Sibling B hold property as tenants in common. Sibling B dies intestate (no will) and no probate is opened. Sibling A files for partition. Sibling A must identify and name B’s heirs (for example, B’s two adult children) as parties. If the heirs cannot be found, the court may allow substituted service or appointment of a guardian ad litem.

Example B: Sibling dies leaving a will and the estate has an appointed executor. The partition plaintiff should name the executor or the estate as a party rather than individual beneficiaries, or name both if appropriate. The executor represents the decedent’s interest in the partition until title passes through probate.

Key South Dakota law references

South Dakota’s probate and intestacy rules govern who inherits a deceased person’s property. See South Dakota Codified Laws on intestate succession (Title 29A, Chapter 2): https://sdlegislature.gov/Statutes/Codified_Laws/DisplayStatute.aspx?Title=29A&Chapter=2. Partition actions and joinder practice are handled in circuit court under South Dakota statutes and local court rules; courts will generally require that any person who claims an interest in the property be made a party so the judgment is binding on all.

When you might first need to open probate

If title is clouded, the heirs are unknown, or there is a dispute about who inherited the decedent’s share, the court or parties may require probate (or a separate heirship proceeding) before or during the partition so there is an authoritative record of the successors. Probate creates a personal representative who can be served and represent the decedent’s interest.

Disclaimer: This article is for general informational purposes only and is not legal advice. It does not create an attorney-client relationship. For advice about your particular situation, consult a licensed South Dakota attorney.

Helpful Hints

  • Gather key documents: deed(s), the decedent’s death certificate, any will, and any existing probate paperwork before filing or responding to a partition case.
  • Do a thorough title and probate search: confirm whether an estate is opened and who was appointed personal representative.
  • If heirs are unknown or unreachable, ask the court about service by publication and appointment of a guardian ad litem to protect missing or minor heirs’ interests.
  • If an estate is open, coordinate with the personal representative — joining the estate may be simpler than naming every individual beneficiary.
  • File an amended complaint promptly if you discover additional heirs after filing. Courts expect parties to join all claimants to the property.
  • Meet service requirements: improper service can delay the case or risk a later attack on the court’s jurisdiction.
  • Consider mediation or settlement early, especially when heirs are multiple or spread out geographically — selling and splitting proceeds may be easier than dividing real property.
  • Consult a South Dakota attorney experienced in real property/partition and probate matters. They can help with joinder strategy, drafting pleadings to add heirs, and handling service and guardian ad litem issues.

The information on this site is for general informational purposes only, may be outdated, and is not legal advice; do not rely on it without consulting your own attorney.