Virginia: Filing a Partition Action for Inherited Property When Co-Owners Are Unresponsive

Short answer

If you own real property in Virginia with other heirs and some co-owners will not participate, you can ask the circuit court where the property is located to order a partition. If owners cannot be located or refuse to respond, the court can allow substituted service or service by publication, appoint a commissioner to sell the property, and divide the net proceeds among the owners (after paying liens and costs). The process starts by confirming ownership (often via the probate file), filing a partition complaint in the local circuit court, and making diligent efforts to give notice to all interested parties.

Detailed answer — step by step under Virginia law

1. Confirm who legally owns the property

Before filing, gather documents that show ownership: the deed, the decedent’s will, the probate file, and any intestacy paperwork. Inherited ownership usually flows from the personal representative’s probate record or from intestate succession under Virginia’s Decedents’ Estates law (see Code of Virginia, Title 64.2). A clear record of who holds legal title (and any mortgages or liens) determines who you must join in the case.

Code reference (general): Code of Virginia, Title 64.2 — Wills, Trusts, and Decedents’ Estates. https://law.lis.virginia.gov/vacode/title64.2/

2. File in the right court

Partition actions are civil actions filed in the circuit court in the county or city where the property lies. That court has the authority to order partition in kind (physically divide the property) or sale and distribution of proceeds. See Code of Virginia, Title 8.01 (Civil Remedies and Procedure). https://law.lis.virginia.gov/vacode/title8.01/

3. Who to name as parties

Name every person or entity with a legal interest in the property: all co-owners (record title holders), mortgagees, lienholders, devisees named in wills, and known heirs. If someone holds the property in trust or a decedent retained an interest, join the trustee or the personal representative as necessary. If you do not know a person’s identity or address, the court still requires you to make reasonable efforts to find and notify them.

4. Prepare the complaint (petition) for partition

The complaint should ask the court to:

• Declare the co-ownership interests;
• Order partition in kind if feasible, or order sale if a physical division is impractical;
• Appoint a commissioner (or master) to value and sell the property if needed;
• Direct payment of liens, mortgages, taxes, and costs from sale proceeds; and
• Order distribution of net proceeds according to ownership shares.

5. Serving co-owners who won’t respond

Virginia requires that every named defendant receive proper notice of the action. If a co-owner cannot be found or refuses to accept service, courts allow alternative methods after the plaintiff shows diligent attempts at personal service. Common alternatives include:

• Substituted service (leaving papers with someone at the person’s usual place of abode where permitted);
• Service by publication (newspaper notice) when a defendant’s location is unknown after diligent search; and
• Mailing notice to the last known address combined with an affidavit of due diligence.

Courts require you to document reasonable efforts to locate and notify missing owners (affidavits from process servers, searches of public records, certified mail attempts, contact with probate counsel, etc.). If the court permits publication or substituted service, it can enter an order allowing the case to proceed even though some parties do not actively defend.

6. Default, hearings, and sales

If a named co-owner does not respond within the time allowed, you may obtain a default and ask the court to enter a partition decree without that owner’s participation. The court then may:

• Order partition in kind if the land can be equitably divided;
• Appoint a commissioner/commissioners to value and sell the property at public auction or private sale if partition in kind is impractical;
• Hold hearings to resolve disputes about shares, liens, and costs.

The commissioner’s report and any exceptions to it lead to a final decree that directs how to pay mortgages, taxes, liens, costs, and how to distribute the remainder among the owners.

7. Liens, mortgages, and tax obligations

Sale proceeds typically must first satisfy valid mortgages, deeds of trust, tax liens, or mechanic’s liens. The partition court orders payment from sale proceeds and distributes the net balance by ownership share. If a co-owner holds a mortgage or lien, they should be named so the court can determine priority and payment from sale funds.

8. Special situations

Minors, incapacitated persons, and unknown heirs: the court will protect their interests. The court may require appointment of a guardian ad litem or additional protective steps before final distribution. If the estate is still in probate, the personal representative (executor) or the estate itself may be a necessary party.

9. Time, cost, and practical considerations

Partition cases vary. Simple uncontested partitions can resolve in a few months. Contested matters, complicated title issues, unknown parties, or required sales can take longer and cost more (filing fees, publication costs, commission fees, attorney fees). Expect several months at minimum when searches and substitute service are needed.

10. When to consult an attorney

Partition actions involve complex title, probate, and procedural issues. An experienced Virginia real estate or probate attorney can:

• Confirm proper parties and ownership shares;
• Handle service and affidavits of diligent search;
• Draft pleadings and argue for commissioner appointment and sale terms; and
• Protect the interests of minors, incapacitated persons, or unknown heirs.

Simple hypothetical scenario (illustrative)

Suppose three siblings inherit a cabin in Virginia. One sibling refuses to respond to emails and letters and cannot be found at the last-known address. The responding siblings:

1. Check the probate file to confirm each sibling’s share;
2. File a partition complaint in the circuit court where the cabin sits;
3. Document searches for the missing sibling (mail, telephone, social media, DMV or tax records) and file an affidavit of diligent search;
4. Ask the court to allow service by publication if personal service fails;
5. If the unresponsive sibling remains absent, obtain a default and ask the court to appoint a commissioner to sell the cabin and distribute net proceeds according to shares after paying liens and costs.

This is a common pathway for real disputes over inherited property.

Helpful hints

• Start at the circuit court clerk’s office where the property sits. Clerks can explain filing requirements and accepted forms, but they cannot give legal advice. Virginia courts: https://www.vacourts.gov/
• Gather probate documents early. A recorded probate record or decree clarifies who to name as parties.
• Document every attempt to locate missing co-owners. Courts expect evidence of diligent search before allowing service by publication.
• Name all lienholders and mortgagees in your complaint so the court can determine priorities and allow the sale to clear title.
• Consider mediation among co-owners before filing. A negotiated buyout or agreement to sell privately can save time and expense.
• If you think a co-owner is hiding to avoid taxes or debt, consult an attorney early. Complex creditor claims can affect partition proceeds.
• Expect costs: filing fees, publication fees, commissioner’s fees, and attorney fees. Budget accordingly.
• When minors or incapacitated persons are involved, ask the court about appointing a guardian ad litem to protect their interests.